Colorado Amendment 64
Colorado Amendment 64 was a popular initiative ballot measure to amend Colorado's constitution, outlining a statewide drug policy for cannabis. The measure passed on November 6, 2012, and along with a similar Washington measure, both marked "an electoral first not only for America but for the world," though Colorado began to put the amendment into practice several months sooner than Washington. Now enacted as Article 18, section 16 of the state constitution, the law addresses "personal use and regulation of marijuana" for adults 21 and over, as well as commercial cultivation, manufacture, and sale, effectively regulating cannabis in a manner similar to alcohol. The first stores officially opened on January 1, 2014.
Contents
Ballot summary
Proposed initiative 2011/12 #30 was submitted on January 4 and found sufficient by the Secretary of State on February 27 to appear on the general ballot for the November election.
Personal use
Adults 21 or older can grow up to three immature and three mature cannabis plants privately in a locked space, legally possess all cannabis from the plants they grow (as long as it stays where it was grown), legally possess up to one ounce of cannabis while traveling, and give as a gift up to one ounce to other citizens 21 years of age or older. Consumption is permitted in a manner similar to alcohol, with equivalent offenses proscribed for driving.
The new legislation does not apply to medical cannabis.
Commercial regulation
The legislation defines industrial hemp as any part of the cannabis plant, growing or not, "with a delta-9-tetrahydrocannabinol (THC) concentration that does not exceed three tenths percent (0.3%) on a dry weight basis." The amendment declares that industrial hemp should be regulated separately from cannabis with higher THC concentrations, and requires the Colorado General Assembly to "enact legislation governing the cultivation, processing, and sale of industrial hemp" by no later than July 1, 2014.
The amendment provides for licensing of cultivation facilities, product manufacturing facilities, testing facilities, and retail stores. Local governments can now regulate or prohibit such facilities. This amendment requires the general assembly to enact an excise tax to be levied upon wholesale sales of cannabis, requiring that the first $40 million in revenue raised annually by such tax be credited to the public school capital construction assistance fund.
Support and opposition
The largest survey for the amendment, conducted October 23, 2012 by Public Policy Polling, indicated that 53% of voters intended to support it, with 46% opposed. On December 9, 2013, more than a year after the passing of Amendment 64, a Public Policy Polling poll showed that the majority of Coloradans still support legal cannabis. With 53% support versus 38% opposition, the survey of 928 Colorado voters showed little change in support for legal cannabis a year on from the amendment vote.
Since the amendment passed there has been concern over its conflict with federal substance prohibition laws. The outcome is nevertheless expected to have broad impacts south of the border, including in Mexico where less than a week after the U.S. vote Mexican senators submitted a proposal to legalize cannabis in their country.
Support
Though support for liberalizing drug policy has traditionally been considered a liberal or libertarian cause, Amendment 64 garnered a number of high-profile conservative endorsements, including, most notably, an endorsement former U.S. Representative and 2008 Republican Presidential Candidate Tom Tancredo, who claimed, "Throughout my career in public policy and in public office, I have fought to reform or eliminate wasteful and ineffective government programs. There is no government program or policy I can think of that has failed in such a unique way as cannabis prohibition." Similarly, Temple Emmanuel's Rabbi, Steven Foster, endorsed Amendment 64 because, "as clergy, we have the responsibility to talk about what policies serve our community best. You do not have to use marijuana—or even approve of marijuana—to see that our current laws are not working."[20] Many supporters of Amendment 64 did so because they wanted to improve the efficiency and effectiveness of the state's law enforcement resources. Proponents believe that permitting recreational use will allow officers to focus on prevention of violent crime and that it will remove some of the burden on the state's prosecutors and courts.
Other justifications for support include: increasing the state's revenue (much of the additional revenue is required to be used to fund primary education), subjecting otherwise illicit substances to health and safety regulations for the protections of users, enhancing individual freedom, eliminating a black market (black markets tend to result in crime regardless of the goods sold because market participants are already criminals, and therefore have less to lose by committing additional crimes), and providing empirical evidence for studying the effects of legalization to identify whether the harms associated with drugs are actually caused by the policy of prohibition.
Yet another argument favoring Amendment 64 is that regulation of cannabis may actually reduce marijuana usage by teens: According to Regulate Marijuana Like Alcohol, the organization responsible for much of the campaigning in support of Amendment 64, cannabis use by teens is likely to go down because commercial access would be limited to persons 21 and older. The campaign also points out that teens who currently seek cannabis have to turn to criminals for their supply and that these criminals may expose teens to other, potentially more dangerous drugs like heroin, meth, or cocaine. Supporters also point out that Colorado's experience with medical marijuana supports their conclusion: The CDC's Youth Risk Behavior Surveillance System monitors a number of statistics for America's youth. The CDC study suggests that cannabis use among Colorado's youths fell by 2.8 percent from 2009 (24.8 percent) to 2011 (22 percent), while the national rate of youth use increased by 2.3 percent from 2009 (20.8 percent) to 2011 (23.1 percent). Furthermore, the CDC found that the availability of drugs on school grounds in Colorado fell 5 percent from 2009 (22.7 percent) to 2011 (17.2 percent), while the national rate increased by 3.1 percent over the same time.
Opposition
The group "No on 64" objected to Amendment 64 chiefly because it claimed the amendment would lead to increased use of cannabis, a consequence the group considers harmful. In particular, the group sees cannabis as addictive and as damaging to children because they believe it "permanently affects brain development, impairs learning ability and contributes to depression."
On October 14, The Denver Post's editorial board announced its opposition to Amendment 64. The board began by saying, "We believe possession and use of marijuana should be legal," but ultimately encouraged readers to vote against the amendments because "Drug policy simply has no business being in the state constitution."
Implementation
The policies took effect when the Governor ratified the ballots, which was to happen within 30 days of the election. Governor John Hickenlooper officially added the law to his state's constitution on Monday December 10, 2012 making the private consumption of cannabis legal in Colorado. The first stores officially opened on January 1, 2014.
Shortly after its passing Colorado Gov. John Hickenlooper stated "This will be a complicated process, but we intend to follow through. That said, federal law still says cannabis is an illegal drug, so don't break out the Cheetos or Goldfish too quickly."[30] On December 10, 2012 Governor Hickenlooper signed Executive Order B 2012-004 to create the Task Force on the Implementation of Amendment 64 to "consider and resolve a number of policy, legal and procedural issues". On March 13, 2013, the task force issued 58 recommendations on how recreational pot should be grown, sold and taxed in the state. On May 28, 2013, Governor Hickenlooper signed several bills into law implementing the task force's recommendations. On September 9, 2013, the Colorado Department of Revenue adopted final regulations for recreational marijuana establishments, implementing the Colorado Retail Marijuana Code (HB 13-1317). On September 16, 2013, the Denver City Council adopted an ordinance for retail marijuana establishments. These local licensing requirements are in addition to the state licensing requirements.
On May 28, 2013 the government also proposed Proposition AA, a 15% excise tax on the "average market rate" and a 10-15% sales tax on retail sales (on top of the 2.9% state sales tax and any local government sales taxes). The Colorado chapter of NORML opposed the measure, supporting the 15% excise tax but opposing the 10% sales tax as unreasonable and unnecessary, arguing that the proposed marijuana taxes could amount to an effective tax rate of 30-40% and would be more than twice the equivalent taxes on alcohol, that there would be adequate funds to effectively regulate recreational marijuana if the measure failed, and that excessive taxation would have the potential effect of keeping a black market alive. The Denver Post disagreed, citing the insufficiency of licensing fees to previously regulate medical marijuana and rejecting the notion that the taxes would drive pot back to the black market. On November 5, Proposition AA was approved by a wide margin, as were similar local taxes such as a 3.5% Denver marijuana sales tax which is on top of the 3.62% Denver sales tax.
In April 2013, the Colorado Court of Appeals held in Coats v. Dish Network that since marijuana remains against federal law, employers can use that standard rather than state law as a rationale for banning off-the-job worker use, and are not bound by Colorado's Lawful Activities Statute:
The primary question before us is whether federally prohibited but state-licensed medical marijuana use is "lawful activity" under section 24-34-402.5, C.R.S. 2012, Colorado's Lawful Activities Statute. If it is, employers in Colorado would be effectively prohibited from discharging an employee for off-the-job use of medical marijuana, regardless that such use was in violation of federal law. We conclude, on reasoning different from the trial court's analysis, that such use is not "lawful activity."
In February 2015, the state of Colorado reported that tax collection figures for 2014, the first year of legal commercial sales, reached a total of $44 million from recreational marijuana with a further $32 million collected from fees on the industry and pre-existing taxes on medical marijuana.
