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Possession is 9/10th of a conviction

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Initiative 502 took effect at midnight today, and while the Seattle Police Department isn’t going any further than verbal warnings for now, it’s unclear how long that grace period will last.

On the off chance that you somehow missed this, I-502 provides that possession of marijuana in small amounts for personal use is no longer illegal. I-502 in many ways parallels the state’s alcohol laws: you can’t drink or smoke in public; you can’t drink or smoke unless you’re a certain age; and if you get behind the wheel, a certain amount of either in your blood will be sufficient to get you charged with driving under the influence. You’re allowed to carry more than an ounce of alcohol though, Amendment 21 be praised!

I-502 also provides until December 2013 for the rest of the state’s regulatory bodies to figure out exactly how the initiative is going to work with regard to licensing, production, rules & regulations, etc. Not to mention that whole marijuana is still an illegal drug to the federal government thing.

Over the last couple of days, NPR has discussed the legality of selling marijuana in Washington, including some suggestions from a man in Washington who runs a legal medical marijuana business. Washington’s medical marijuana law allows medical marijuana patients to possess and grow their own, but it’s not yet legal to buy or sell marijuana. So, the legality of his business may be questionable; although his willingness to go on a national news program and provide his name indicates that he either thinks it’s legal or doesn’t care. (In another NPR interview, Chong of Cheech and Chong suggested the former, that many marijuana smokers consider the act legal, regardless of what the law says.)

His situation exemplifies the awkward situation Washington created for itself. If it’s legal to possess pot but it’s not legal to buy it from anywhere except a licensed retailer, and there are no licensed retailers yet, what’s a consumer to do?

Let’s say someone gets caught with an ounce of weed on his person, and in that part of Washington, the police and prosecutors were not happy about the passing of I-502. They can’t arrest him for possession, because possession is legal. But can they arrest him for illegally purchasing it? Purchase, receipt, processing, producing, possession, delivery, and sale in accordance with I-502 are not criminal or civil offenses under state law; but if the laws to be in accordance with don’t exist yet, then how can he accord?

If he goes on trial, how does that play out? The prosecutor proves there were no legal retailers at the time of the offense; the kid pleads the Fifth. Convictions aren’t usually won by proving a negative. You don’t get a murder conviction by proving no one else could have done it, you have to prove that the defendant did do it. The Logic Daemon might tell you there’s no difference, but courts of law like direct evidence of guilt, not the elimination of all other possibilities.

And if it is a good enough style of arguing for a conviction, there’s an earlier hurdle for the state to get over, probable cause. If it’s legal to possess marijuana, for what reason is the state going to investigate where it was purchased? Is knowing that there are no licensed retailers enough to give rise to a suspicion that it wasn’t purchased legally?

The logic makes sense, but it’s just a weird way to look at criminal evidence. It’d make for a messy trial if it ever goes, but there is an entirely nice, clean, no fuss solution: just don’t prosecute people. Though, with the number of asshole cops and asshole defendants out there, and a year of time for two of them to meet each other, there’s a good chance we’ll see one of these messy court cases.

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