Why the Seattle Woman Who Wants to End Mass Incarceration Is Defending Pot Prosecutions

Heidi Groover, The Stranger

If you care about pot policy in this state, there’s a sentence you need to read. It’s buried in some legal jargon and it doesn’t seem that sexy at first, but stick with me.

“If escalation of sanctions were deemed appropriate, the city has authority to prosecute repeat license offenses as gross misdemeanors, initiate civil asset seizure and forfeiture, or even refer cases for felony prosecution.”

Boring and a little impenetrable, I know. But those words are important in part because they came from Alison Holcomb—a criminal defense attorney and author of Initiative 502, the state’s marijuana legalization law. She wrote them in a December 11 e-mail to city officials about their plans to create new rules for medical marijuana in Seattle.

As I reported last month, the city is worried about the number of new medical pot dispensaries that have been opening, and it's looking for ways to crack down on them. In a chain of e-mails that included city council members, mayoral staff, and others, Holcomb argued against a new local licensing scheme the mayor's office has proposed for medical businesses. Dispensaries are not strictly legal under state law, she pointed out, and the state legislature will almost certainly take up the issue in the upcoming session, creating statewide rules for medical growers and sellers.

Instead, Holcomb told city officials they already have the authority using city business license rules* to find those who aren't following local laws and punish them—potentially by charging dispensary owners with misdemeanors or felonies—and she suggests they should use that authority to curb the medical market.

Maybe this isn't entirely surprising coming from the architect of I-502—plenty of people think the recreational market can’t thrive until the medical market is dead. But that’s not Holcomb’s only job.

In November, she took the lead on a campaign for the national ACLU to slash mass incarceration rates. You know, the mass incarceration that’s driven in a big way by arrests for drug crimes.

So, why would Holcomb advocate for anything less than an end to all marijuana arrests? I called her up to ask.

“Do I want people getting arrested and prosecuted for growing and selling marijuana? Absolutely not,” she says.

But, in her philosophy, it’s not that simple. To ever end drug prosecutions and really cut into mass incarceration rates, Holcomb believes you have to show those who favor tough drug laws that you can create an alternative that works. (Whether 502 is working or ever will is up for debate.)

“Unless we think that Americans are ready for everyone to be allowed to grow and sell marijuana, cocaine, heroin, and methamphetamine without any sort of regulation or safety measures—unless we think we’re ready for that, we have to come up with some sort of regulatory framework our fellow citizens will feel comfortable with,” Holcomb says.

For her, that means creating a regulated market like 502 and then getting rid of any less-regulated competition—like the medical market—in order to make sure that the regulated market works.

“If you create an entirely parallel industry that has competitive advantages like lower prices and more convenient locations, you’re just incentivizing additional violations of laws,” she says. “We’re seeing those who are holding themselves out as medical [providers] selling to people who are not patients. It’s a bad idea to continue to shape laws that incentivize that kind of unfair competition and fraud.”

When lawmakers take up this issue in Olympia this month—a bill from Sen. Jeanne Kohl-Welles (D-Seattle) proposes folding the two markets together—it is likely to be a complete shit show. Expect to see the resurrection of old divisions between recreational and medical activists, some of whom accuse Holcomb of selling out her background advocating for patients in favor of her 502 legacy.

Medical providers and patients frequently point out that 502 wasn’t supposed to affect them and argue that being a part of the state-supervised recreational market would force patients into expensive, hard-to-find stores. Questions around taxes and access for patients who are under 21 loom.

Steph Sherer, executive director of Americans for Safe Access, a national medical marijuana advocacy group, put it this way in a 2013 Seattle Times guest editorial: "[The state Legislature] can’t pretend those who depend on cannabis to treat their medical conditions are the same as those who enjoy passing a joint at a concert." (ASA has launched an effort called "Health Before Happy Hour" to lobby against merging the systems.)

All this is underpinned by conflicting narratives about who these medical marijuana patients are: Patient advocates point to the gravely sick and dying as evidence of those counting on the medical market, while others accuse the industry of being nothing more than a cover for recreational buyers looking to score cheaper weed.

Now, just ahead of the Legislative session, Holcomb's argument has momentum among Seattle's power brokers.

In the December e-mail thread, city council president Tim Burgess wrote: "Our grand experiment with I-502 will fail if we allow three independent markets to survive—502 retail stores, medical outlets, and the traditional illegal market. It is crucial that the Legislature fix this in the next session so we have one unified marketplace regulated by the state serving casual and medical users. To do otherwise, it is [to] doom our experiment with legalization of marijuana."

Mayor Ed Murray may be on the same page—but then again, maybe not. In a statement, he says he wants a “statewide framework that addresses the future of medical marijuana.” But he also says he’s heard from patients who can’t get the medicine they need in recreational stores, so “shutting down all collective gardens is not the right solution.” On whether the two systems should be merged, Murray's office says he's not taking a position.

Seattle city attorney Pete Holmes released a 20-page "road map" Monday calling on the legislature to combine the two markets because “unlicensed, unregulated, and untaxed suppliers will always have an unfair economic advantage in the absence of a clear and committed threat of enforcement against illegal activity.”

Here in Seattle, Holmes writes that the city should shut down large-scale medical businesses or those that violate other city rules or are “nuisances” in their neighborhoods.

At the state level, he praises a few pieces of Kohl-Welles's proposal that could alleviate some of the medical community's concerns: a “waiver” from the Department of Health that would allow patients to buy pot tax-free and allow underage patients to designate a provider to buy it for them; new licenses for bud-tenders who have specific knowledge of medical marijuana; and new testing and labeling rules for “medical grade” cannabis.

He also calls for allowing anyone 21 or older to grow up to six plants at home, exempting low-THC strains (which don’t get users high and are often used for medical patients) from taxes, and changing the way the taxes are charged.

Whether these provisions will adequately deal with the problems medical providers see in 502 remains to be seen. But it's clear that the people who built I-502 are after the medical market in hopes of making sure legalization succeeds.

“I-502’s potential contribution to the state general fund’s bottom line should be obvious,” Holmes wrote. “Both revenues and public safety will be compromised, however—with no real benefit to bona fide patients—unless the illegal, unregulated, untaxed commercial medical marijuana industry is finally reconciled with Washington’s I-502 structure."

When I ask Holcomb whether she’ll be able to mend fences with activists in the medical community, she sounds unsure but says she's confident patients will end up with the access they need because "there are enough good-hearted, compassionate people who are going to make sure patients have access to what they need, regardless of what the industry evolves into."

She characterizes the fight as a clash between the old school and new school of marijuana entrepreneurs, with profit margins at stake for whoever loses. “It really does seem true that money ruins everything," she says.

*As it turns out, Holcomb says she found out later the types of licenses the city has actually been granting dispensaries are slightly different from the type of license she was referring to there, but the point stands: She suggests prosecution as a way of cracking down on medical marijuana.