Waiting to inhale

IWAS part-way through an interview with a criminal defence attorney and an AIDS activist when a warm sensation stole over me. I had been in the activist's illegal grow house inspecting a little stainless-steel mixing bowl full of capsules of intensely concentrated cannabis oil that he had extracted the night before from two garbage bags full of buds.

Their skin was greasy and they glowed a dull green when I held them up to the light.

Half an hour later we were discussing the medical uses of pot when their voices seemed to fade out and I found myself gazing pleasantly at a door.

"Can those things make you stoned just by touching them," I ask the activist.

"Ah shit," he says. "Sorry." He adds unhelpfully: "Jesus. Look at your eyes."

I had come to Washington to write about how the state had come to legalise marijuana in a referendum in the November presidential election that shocked the rest of the nation.

Washington – like Colorado, which passed different measures to similar effect – did not take the baby step of decriminalising the use of the drug, nor did it legalise by stealth by broadening a medical marijuana program. Instead voters chose to legalise and regulate the growth, processing, sale and possession of pot for recreational purposes.

This, says the former Washington State Bar Association president Salvador Mungia, one of the reform's champions, is how alcohol prohibition ended 80 years ago. First states stopped enforcing federal laws.

Then they stopped enforcing state "mirroring" laws that the federal government had demanded they introduce. Then they began repealing their own laws, dismantling the legal foundation of prohibition from beneath.

Perhaps. Either way, getting to know your way around Washington's hazy pot politics can be a little jarring. Proponents of the new laws tend to look like Mungia, who, as he sits in a suit at the conference table of a high-end law office preparing for a deposition one recent morning tells me he has never smoked pot, let alone inhaled it. Not once.

Among the fiercest opponents of the laws is Sensible Washington, a pro-pot advocacy group that has been fighting for the repeal of laws against marijuana for years.

FROM the window in his corner office on the fifth floor of the glassy Seattle City Hall, the City Attorney, Pete Holmes, looks straight out at three stolid public buildings, all linked by a forbidding overhead bridge that casts shadows over two of Seattle's main streets.

It is an enclosed tunnel through which felons are escorted high above two of the city's main avenues from a jail, over an administration building into the courthouse. The bleak, windowless shaft looks more industrial than pedestrian.

"It's ugly as hell," says Holmes as he looks out at the skyline. He is talking about the architectural blight, but once you've spoken to Holmes for a while you realise he could be talking about the pointless machinery of arrest, incarceration and release.

Holmes became the Seattle City Attorney in 2010 after a campaign in which he argued against building of a planned new jail. He said as the city's chief prosecutor he could bring down the number of prison beds needed by targeting prosecutions more carefully, particularly by better abiding by a citizens initiative voted on in 2003 that decreed that Seattle's police should consider enforcement of marijuana possession laws to be their lowest priority.

Shortly after he was elected Holmes announced he would no longer prosecute people busted for possession. Police made their feelings known by baiting him with increased arrests.

Meanwhile, another group was putting together different reforms that would have strengthened the protections offered to medical marijuana users. At the time, under Washington State law, people with doctors' certificates were not protected from arrest; rather they had a strong defence once arrested. In the end, though, the state's governor, concerned that passing such a law would force state employees to break federal laws against marijuana, vetoed the bill.

"That was the last straw for me," says Holmes. He was sure prohibition had failed completely. The state was awash with "BC bud" that flowed south from British Columbia across the Canadian border, as well as marijuana, crystal meth and heroin that followed the smuggling lines up from Mexico. A study showed it was easier for a 14-year-old to buy pot than a six-pack of beer. And despite his own moratorium on prosecutions in Seattle, people were flowing through the prison system across the state on the back of small possession charges.

And Holmes had moral concerns, too. "Prohibition has been implemented in a racially disproportionate manner, it has made us the No. 1 jailer nation on the planet both in absolute and relative terms, and it has made criminal enterprises incredibly wealthy.

"One statistic from the US Justice Department that appears to be pretty solid shows that of the Mexican drug trade 60 per cent is marijuana . . . That means 60 per cent of the 50,000 murders [in the Mexican drug war], 60 per cent of the lawlessness."

He began discussing what real marijuana reform might look like with the American Civil Liberties Union drug policy director in Washington, Alison Holcomb. They decided reforms should recognise the efficacy of medical marijuana for some patients, while dismantling the farce that for a time saw more pot dispensaries in Seattle than Starbucks outlets.

Reforms should replace the black market with a legal market and generate tax revenue for the state.

As the two bounced drafts of a bill back and forth, Holcomb built a political campaign. By the time what became known as Initiative 502, or I-502, was passed, $6 million would be raised and spent in the campaign and its associated work in polling and focus group testing. Those backing the bill wanted to know not so much what marijuana users wanted from the law, but what the rest of society did not want. Then the group went about allaying fears.

Driving under the influence would be banned and strictly policed; possession would be illegal for anyone under the age of 21. Consuming pot would be legal, but only in private – Seattle would not become a new Amsterdam.

In 2011, Holmes went public with an opinion piece in the conservative Seattle Times newspaper advocating an end to prohibition. He was stunned a couple of days later when the paper endorsed his position with its own editorial. So was the left-leaning weekly publication The Stranger, which wrote admiringly of the Times editorial, "you could've knocked our stoned, tax-and-spending asses over with a feather when the Times editorial board wrote on February 18: "Marijuana should be legalised, regulated and taxed."

The Stranger reported that former and serving senior police and judiciary backed reform, as did the entire city council and the mayor. Many state politicians were on side.

After a generation of failure by pro-pot activists, Holcomb and Holmes saw their reform pass easily on election night last November. Suddenly once possession was legal Washington and the state's Liquor Control Board found itself having to quickly build a regulatory system from the ground up. Much of the system was described in the bill itself.

Under that system, by the end of the year it is expected the state will begin issuing three types of licence for the growth, processing and sale of pot. No one person or company will be allowed to own two licence types. Growers will sell to processors who will package marijuana products and produce foodstuffs and drinks, which will then be sold by retailers. At each step along the way the state will put out its hand for 25 per cent tax – or 75 per cent in total.

The state budget office predicts the cost would be comparable to the black market of around $13 a gram.

Individuals will be able to buy 30 grams of smokable marijuana, 500 grams of edible products or two litres of THC-infused liquids.

Approved retailers will be allowed to sell marijuana products only, and will not be established within one kilometre of schools. Growing pot would remain illegal.

AFEW blocks down the hill from Holmes' office, Doug Hiatt, of Sensible Washington, shares some battered old rooms with a handful of other defence attorneys, and from there he leads an angry campaign against the reforms.

He wears his greying hair in a ponytail and is prone to T-shirts with anti-drug war slogans. He has been fighting to legalise pot since he first defended a jailed AIDS patient 20 years ago. His problem is not that I-502 liberalised drug laws, but that they did not go far enough, and now enacted they make further reform harder.

He speaks in long, loud, frenetic bursts of language laden with detail and fact and obscenity. After a 20-minute blast shortly after we met I tell him, "Mate, you're going to have a heart attack."

"I'm not going to have a heart attack," he bellows back. "I'm going to f---ing kill somebody."

One of Hiatt's main concerns is the new driving-under-the-influence laws – now known as "green DUI". As part of the campaign to win mainstream support, those backing I-502 made laws against green DUI tougher than those against alcohol. Those caught with more than 5 nanograms of active marijuana per millilitre of blood face prosecution. For those under the age of 21 there must be no legal level of pot in the system. The impact on youth and medical marijuana patients could be catastrophic, says Hiatt.

"Because it is strict liability I can't argue that you are a medical marijuana patient, I can't argue that because you have been using for years you have developed a tolerance, I can't bring in evidence that you were not impaired, because it's not about impairment any more.

"With alcohol you are presumed guilty but there are still defences."

Hiatt argues that rather than there being 10,000 convictions for minor possession – most of which came about via traffic stops – there will be 10,000 or more DUIs.

"And they are a lot worse. They stay on your record longer, they cost you a lot more money, and for those kids 16 to 21, zero f---ing tolerance baby, zero tolerance. You try and get a student loan with a green DUI on your record, try and get insurance."

Later that night we drive out through the Seattle suburbs to a grow house being constructed by Dale Rogers. Rogers was found to be HIV positive in 1987 when he was just 18 years old, and though he is in good health today he has faced death more than once since then.

Pot's anti-nausea properties have helped him keep down the mountains of pills he needed to take, it stimulated his appetite and helped him gain weight, it decreased his stress, improved his sleep and was the only drug that effectively treated crippling neuropathy.

As an activist and member of a medical marijuana collective over the years he has made no secret that he has broken provisions of the medical marijuana laws, but he has never been arrested, in part, he and Hiatt believe, because of his high public profile.

Now he worries that he might fall foul of the new laws. While he can own a small quantity of pot, he can't grow the drug in bulk, nor share it among other patients – the very point of his collective. Nor does he want to buy pot from the newly licensed recreational stores, especially since like many other medical marijuana users he has built close relationships with specialist growers.

Rogers shows me the equipment he used the night before to refine his marijuana concentrate, then he hands me the capsules that I naively pick up to inspect. Soon I start fading out.

Hiatt is on a rhetorical roll, though. He believes only the complete repeal of all marijuana laws, coupled with minimal regulation, will kill the black market.

"The only thing that competes with the black-market is a free market," he says. "If you ain't got a free market you ain't going to solve the problem, I don't care if it's marijuana or motherf---ing peanut butter.

"If I outlawed peanut butter tomorrow there is going to be a f---ing black market in peanut butter three f---ing days later."

Holmes disagrees. "People don't make gin in their bathtubs any more," he says. "It's easier to buy it in a shop."

As for prohibition, since the law was passed, Holmes has taken calls from officials in many other states asking how it was done. Now they have to wait to see if the federal government will step in to preserve prohibition from above.

This story Waiting to inhale first appeared on The Sydney Morning Herald.