NEW YORK (MainStreet) Colorado has decriminalized marijuana and left a major asterisk in its wake. Smoking up remains highly regulated in the Centennial State and selling the drug requires several layers of government scrutiny, but we have crossed the Rubicon. Pot, for all intents and purposes, is now legal.
This change means many things to many people (and an explosion in profits to the Frito-Lay corporation), but as a lawyer it means just one thing to me: marijuana law just got much more complicated. In fact, for all intents and purposes, marijuana law now exists.
To explore the issue a little bit further, I spoke with Jeff Gard a partner at the Gard and Bond law firm in Boulder. A 20-year veteran of Colorado's courts, Gard specializes in legal issues surrounding marijuana. We talked about his thoughts on the future of marijuana in the law, and what it will mean for the profession.
Get a Lawyer, Not a Crusader
One of the biggest problems with pot law, Gard said, is that it tends to draw crusaders from the bar.
"It attracts people who are interested in the movement," Gard said, "but the hallmark of legal representation is to set aside your own desires and truly represent your client's interest in the context of the law that exists."
Gard says that he often sees lawyers drawn to marijuana law because of their personal interest in the issue. The problem is that these crusader lawyers let that interest color how they counsel their clients, often giving advice based on how they wish the law worked instead of from a strictly objective point of view.
This is often particularly true when it comes to criminal law.
"Some lawyers would advise clients that dabbling in this issue was a gray area and I took issue with that," he said. "There is no gray area. If it's not white, it's black; there's no gray area in the criminal law."
This has become even more important in the wake of legalization. Now lawyers who want to deal with marijuana have to know a raft of regulations surrounding ownership, possession and use before they can competently advise a client. Gard calls it a back-to-basics approach, having to focus on what the law says and what that means for his client. Crusader lawyers can get sloppy, telling clients what they think ought to be legal and sending people out ill-informed on a confusing subject.
At least before legalization clients could consider themselves forewarned, they knew marijuana was illegal regardless of what their lawyer said. Today a lawyer who confuses his agenda for objective legal advice can do much more harm.
Post Conviction Problems
One of the many, major questions in the wake of legalization is what happens to people convicted of drug crimes. Many people are currently serving time for something that today would be perfectly legal. What will Colorado do for them?
"That's simple," Gard said when asked. "Nothing."
"When you commit a crime, it's what you did at the time," he explained. "When these guys were engaged in the sale of marijuana, they did not do so when it was legal; they did so when they fully knew that it was felonious and illegal."
Any crime has two major elements, the act itself and the state of mind (known among lawyers as "mens rea"). Did you know what you were doing? Did you intend to do it? In many ways, the law considers state of mind just as important as the substance of what you did. It's why accidentally killing someone counts as manslaughter not murder, and why defendants will remain in jail for selling marijuana even after it's been made legal. They intended to commit a crime, and for that they'll remain locked up.
"What they did at the time was knowingly commit a felonious offense," Gard said. "Although on a moral stand point -- on a social standpoint -- things perhaps have changed for that, it remains that when they engaged in that conduct they knowingly committed a crime."
"If what you were thinking was to hell with the law," he added, "then that's how it comes down."
Still, that's not to say this issue won't come up. It almost certainly will. Defendants charged with marijuana crimes will take up legalization as an argument for clemency or other forms of post-conviction relief, and local lawyers will need to be ready. It may not become a part of practice for long, but it's certainly coming.
The Coming Explosion of Administrative Law
Legalizing marijuana might cut into Colorado's criminal defense industry, but lawyers will almost certainly see that business rebound everywhere else. Legalization means regulation, as well as the paperwork surrounding businesses, property law and contracts that crop up every time a new industry opens up.
"Our laws of legalization should not be over-read," Gard said. "It has decriminalized adult possession, it has decriminalized adult use and it has provided for a state run distribution. [But] the only legal distribution of marijuana comes in the form of being a licensed business that's supervised by the state of Colorado... Everything else is illegal. To grow seven plants [instead of six] is a felony. To sell them to another adult is felonious. To sell it without a license is felonious. Everything else is a crime."
Clients, the ones who don't break the law, will need help navigating it, and Colorado lawyers are about to see an expansion in every area that touches upon administrative and government law. Taxation, regulation, corporate structuring, private contracts and many more fields will need to adjust to the new laws surrounding marijuana, the businesses about to distribute it and the money they'll make.
These legal issues will be made more complicated by the fact that this area of law is not only highly regulated but brand new. Case law won't exist yet for many of these issues, so Colorado lawyers will have to make it.
They'll also need to get ready for marijuana to creep in just about everywhere else. Divorce lawyers will see it come up in custody hearings. DUI's will start to involve drivers high at the time they got pulled over. Personal injury lawyers will need to look into whether their witnesses were high at the time of the accident. Labor lawyers will have to address workplace regulations about marijuana, as well as the inevitable case when an employer tries to ban after-hours use.
Legal weed will show up just about everywhere.
The Federal Question
For a lawyer federal law remains one of the biggest questions surrounding marijuana. In all the hype over state legalization movements, it's important to remember that the drug remains illegal as a matter of federal law.
"The federal laws are still all in place," Gard said. "The Controlled Substances Act makes marijuana the most dangerous and illegal substance in the world, and if you get in the federal crosshairs, there's no state law defense to that."
Gard described this as something that's "quite troubling" to him as a lawyer. Currently there's no way to reconcile Colorado's, or any other state's, legalization movement with federal law. It can't be done. The Department of Justice could file a lawsuit and have Colorado's Amendment 64 thrown out tomorrow if it wanted to.
So far, it obviously hasn't. The feds have left low level marijuana issues to the states, preferring to worry about big picture problems instead: cartels, money laundering, large interstate drug shipments and the like. But Gard cautioned that this is something to which states like Colorado need to pay close attention. If the local marijuana industry ever appears to grow out of control, for example if it starts creeping onto schools or local growers start smuggling into other states, the federal government could very well decide to take a more aggressive approach.
Barring that, however, Gard suggested that it would probably take a very good reason before the Department of Justice decided to intervene. Marijuana has become an issue of federalism, he said. States have begun to assert their rights to explore and decide this issue for themselves. While the government could interfere in a heavy handed way, that would probably have political pushback and would end up more complicated than it seems.
"As part of any discussion that I have [with clients], they are advised that this is illegal federally and that what they're doing violates federal law," he said. "They're taking the risks that come with that. That may not sit well with some, but I advise them that this is not a business without risks."
"The most important legal advice you can give a client," he said, "is sometimes the simple word 'no.'"
Written for MainStreet by Eric Reed, a freelance journalist who writes frequently on the subjects of career and travel. You can read more of his work at his website www.wanderinglawyer.com.