Will Oregon legalize it?

This November, Oregonians will have the opportunity to vote on whether to legalize the possession, cultivation, and sale of marijuana within the state. The Oregon Cannabis Tax Act was certified to go to a popular vote as Measure 80 this Fall. Measure 80 ("the Act") would replace or supersede all state marijuana laws except those that relate to driving under the influence of intoxicants and the Oregon Medical Marijuana Act. The Act seeks to implement this legalization through a variety of means, and even refers to itself as a "scientific experiment" conducted by the citizens of Oregon.

First, the Act would allow any Oregonian to grow and possess any amount of marijuana for personal use without any regulation by the state.

Second, the Act would allow anyone over the age of 21 who does not have a prior conviction for either the unlicensed commercial cultivation of marijuana or the sale of marijuana to minors under the act (which would go into effect on January 1, 2013 if approved) to be qualified to purchase, cultivate or process marijuana under the provisions of the act.

Third, the Act would create the Oregon Cannabis Commission to implement, oversee and promulgate rules for the administration of the Act. The Commission would oversee the licensing of growers, processors, and purchasers of marijuana. The Commission would itself purchase marijuana from the licensed growers and processors and resell that marijuana through its own stores.

Fourth, the Act creates new criminal penalties for the possession, use, cultivation and distribution of marijuana not in accordance with the Act. These penalty provisions primarily involve the distribution of marijuana to minors or the production of marijuana for sale out of state.

Fifth, the Act specifically delineates where the funds generated by the OCC from the licensing, fees and sale of marijuana are to be applied. First, the OCC itself is to be funded, 90% of the remaining funds would go to the state's general tax revenue fund. The remaining 10% to be divided between drug treatment and education programming and two newly created hemp-related committees.

Finally, the Act allows without restriction the cultivation of hemp and the production hemp-based products.

Quite an ambitious experiment indeed. However, because many of the Act's provisions are in direct violation of federal laws criminalizing the possession, cultivation, and distribution of marijuana, the experiment may have wide-ranging and devastating consequences to individual Oregonians.

It is important for individuals to understand that Measure 80 will not insulate them from federal criminal liability. And federal criminal liability for marijuana offenses can be extreme. For example, federal law provides for a five-year mandatory minimum prison sentence for growing 100 or more marijuana plants: 10 years for 1,000 plants.

Not only would the home grower-user be exposed to federal liability, under the Act the Commission itself, the individual commissioners, and individual grower/processor/purchaser licensees would daily be committing rather significant federal offenses as they went about their daily business under the Act. Significantly, while the State of Oregon would be receiving revenue directly from state-sanctioned federal criminal behavior, the state could do nothing to prevent federal prosecutions based on that behavior. In a very real sense, the Act makes the State a criminal co-conspirator in violating federal marijuana (and money laundering) laws. An interesting "experiment indeed."

Make no bones about it. The authors and promoters of Measure 80 fully intend this conflict with the federal government. Indeed, some of them themselves may be willing to risk such prosecutions. However, if Measure 80 passes and is not struck down immediately in federal court, Oregonians who exercise their "rights" under the Act should first consult with an experienced federal criminal defense lawyer. There will be prosecutions of the participants in this "experiment."


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