By Darren Smith, Weekend Contributor
Prior to marijuana legalization in Washington, enforcement of state marijuana laws were, as with the various other states, primarily enforced by city police, county sheriff’s departments, and the state patrol.
Now the driving force behind state efforts has mostly shifted to the Washington State Liquor Control Board and the Washington Department of Revenue for licensing and revenue collection for state licensed producers, processors, and retailers. The medical marijuana aspect is currently unregulated by the state. There does remain, however, the illicit trade which still provides contraband marijuana and remains the largest supplier of the substance.
Yet when we look at other regulated substances such as alcohol and tobacco, local law enforcement officers rarely intervene in the illegal trade. The primary agency responsible for enforcement of these substances’ statutes is that of the Liquor Control Board.
Should enforcement of the marijuana laws be deferred by traditional law enforcement as well?
In Washington, traditional police agencies commission what is referred to as General Authority Washington Peace Officers, known to the public as Police Officers, Sheriff’s Deputies, and State Troopers (along with their respective agency chiefs and sheriffs). These officers have the authority to enforce any law in the state both criminal and civil. Sheriffs have greater authority with regard to certain procedural issues with the courts and other processes and the State Patrol has a few duties delegated to its personnel but for the most part they are the same.
These agencies and officers have the power to arrest someone for ordinary crimes as well as for possession of untaxed cigarettes. But, the latter is rare indeed.
In practice the regulatory criminal laws are deferred by traditional Law Enforcement Officers and agencies to the various state departments having regulatory authority. The Department of Labor and Industries enforces criminal laws relating to unlicensed contractors not the local sheriff’s department. Local police agencies will not allocate funds or personnel to contractor violations due to this and other issues that are covered by specific state agencies.
Now, with legalization and taxation of marijuana, the focus has shifted away from outright contraband to enforcement based upon violation of a regulatory scheme. That is, the illegal possession and distribution of marijuana in violation of regulatory law. As such and at present there is now a situation in Washington where enforcement of regulatory mandates of an industry holds dual primary jurisdiction between a state regulatory agency, the Liquor Control Board, and local law enforcement. Seattle being one of the few jurisdictions where the legislative body (the City Council) mandated the police department treats marijuana enforcement as the lowest priority.
The duplicate enforcement nature between law enforcement agencies and a state regulatory department is rare and with regard to alcohol and tobacco it is certainly the case. In actuality city and county agencies do not allocate resources to these two in the least.
There arises a similar question with city and county police agencies now with marijuana. Should these entities perform the work of the Department of Revenue or the Liquor Control Board? If other regulatory matters are to be used as examples the answer should be “No.”
Let us use tobacco as our working example.
As stated before, the primary agency responsible in the state for the regulation of tobacco distribution is the Liquor Control Board. The agency responsible for tax collection is the Department of Revenue. Tobacco is excise taxed at the wholesale level and sales taxed at the retail level. Traditional law enforcement agencies do not involve themselves with regulating the industry. It is a felony to possess greater than 50,000 untaxed cigarettes by a person unauthorized by regulatory statute and a misdemeanor for less than this. Yet, traditional agencies only generally enforce this when requested by the LCB or Department of Revenue to assist their agency. Most of the violations are processed behind the scenes without involvement with local police agencies.
Now, we have marijuana in the same category as tobacco in many respects.
A person or organization may possess as a licensed producer hundreds of pounds of marijuana just as a licensed tobacco wholesaler may possess hundreds of thousands of untaxed cigarettes. If the sale and transfer of these products is made to a licensed receiver of these goods and the appropriate taxes and paperwork is filed with the state no violation occurs. If a violation does occur, again, this is handled by the Department of Revenue and the Liquor Control Board. In essence this is no different than with marijuana.
A person bringing contraband cigarettes into the state would most likely receive enforcement action by these two state agencies. Not local law enforcement primarily.
Since now the primary state interest in marijuana is regulatory and taxation. Violations should now be viewed the same as other contra-regulatory practices—not under the purview of traditional police agencies—and instead the Liquor Control Board and the Department of Revenue.
This concept involves the changing of a mindset away from enforcement against a fully contraband substance, marijuana. We saw with the end of alcohol prohibition in Washington, the state eventually established the Liquor Control Board that oversaw the importation, distribution and sale of spirits in a fully state controlled environment (though this was repealed partially in 2012). During prohibition, local law enforcement had greater involvement, if not somewhat reluctantly in certain jurisdictions. Now, the police rarely involve themselves. Traditional Law Enforcement Officers do not view alcohol as a priority and mostly only become involved when it is shoplifted as is the case with other goods. Police do not participate in other regulatory actions.
Marijuana is in actuality the same matter.
The various city and county agencies would free up significant resources in terms of manpower and budget if they nearly completely stopped enforcement of marijuana regulations and deferred this to the Liquor Control Board and the Department of Revenue. Grows and possessions of illegal marijuana are in essence licensing and tax violations which are better suited to regulation which is not the purview of the police. There is no reason to believe that in actuality it is any different than for cigarettes, wine, or widgets.
There is an argument made that local governments could articulate an interest in deterring the organized crime element that is manifest in the marijuana trade and that organized crime element does degrade the quality of life and safety in the community. But when looking at the tobacco model organized crime IS involved in the untaxed cigarette market in bringing in contraband cigarettes from other countries or hijacking shipments. In fact, according to the Department of Revenue about 38% of all cigarettes sold in Washington are contraband and sold untaxed. The primary reason for this is Washington’s high cigarette taxes, just the same as the untenable taxation on marijuana being the largest reason the legal marijuana industry is risking collapse in the state.
While local law enforcement agencies certainly have a duty and a role to curtail the dangerous drug trade, such as with methamphetamine and heroin by statute, the time has come for these agencies to abandon marijuana enforcement as a primary responsibility and be in line with the changes of these times and our society.
By Darren Smith
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