- Daniel Jitchaku
- Behold a new $800 weed mulcher, purchased after Coloradans voted to legalize weed.
There were a few years when the War on Drugs, at least concerning marijuana, seemed to be over.
It took decades for popular opinion to change, but ultimately a majority of Americans came to see marijuana policies as a waste of resources at best and a civil rights travesty at worst. Activists had long offered an alternative. Legalizing recreational marijuana, so the reasoning went, would keep otherwise law-abiding citizens, especially young black and brown men, out of the criminal justice system; law enforcement would be freed up to deal with more serious crimes; and the extra tax dollars would come in handy. Colorado voters went for it, passing Amendment 64 in 2012. But now, years into this policy experiment, the status of marijuana in Colorado is more convoluted than anyone could've predicted.
The root of the problem? Marijuana is still considered the most dangerous and addictive kind of drug under the federal Controlled Substances Act. Some states departed from that view, creating a tension between state and federal law that, during the Obama years, was more or less ignored. But now there's a new boss at the Department of Justice — the former U.S. senator from Alabama, Jeff Sessions — a man whose tough-on-crime rhetoric harkens to policing of the 1990s when prisons were filled with nonviolent, low-level drug offenders. And it's not just rhetoric. On May 11, Sessions issued a memo urging prosecutors to pursue the most serious charges carrying the harshest sentences in drug cases, even the low-level ones. In a speech at DOJ headquarters the next day, he said, "If you are a drug trafficker, we will not be willfully blind to your misconduct."
Colorado leaders are not holding their breath to find out whether state-regulated dispensaries are "drug traffickers" in Sessions' eyes. Rather, as soon as the new administration came to power, state officials including Gov. John Hickenlooper, a Democratic legalization skeptic, and Colorado Attorney General Cynthia Coffman, a Republican, began publicly urging federal restraint. Industry leaders got serious, launching a well-heeled lobbying effort in D.C., where members of Colorado's congressional delegation — namely House Dems Jared Polis and Ed Perlmutter — brought legislation on their behalf. And here in Colorado, a bipartisan majority of state lawmakers passed several bills designed to insulate marijuana businesses and consumers.
Among those was a measure to limit residential grows to 12 plants. There was already a lot of momentum behind House Bill 1220 from police, municipal and industry lobbies that have argued for years that growing marijuana in homes is a public safety risk and a blind spot for state regulators — not to mention tax collectors. This year, with Sessions bearing down, proponents of the plant limit had a new line of reasoning on their side: tightening regulations would keep the feds at bay by proving Colorado can weed out its black market.
The bill passed with bipartisan support this past legislative session, and it will go into effect in January 2018. Unlike our existing municipal and county plant limits, this one is a criminal, not a zoning, violation. But the law has created one problem and done nothing to solve another.
First, under HB1220, medical marijuana patients, who until now have been able to grow up to 99 plants under state law, will be limited to no more than 24 plants, even though about 8,000 of them have doctors' recommendations for more, according to the state health department's last count at the end of 2016.
Second, police are already up to their necks in marijuana plants seized from noncompliant or illegal home grows, but the root of their struggle isn't the law so much as its logistics — they simply don't have the space, time or manpower to deal with all the seized crop.
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Coloradans with red cards have been able to grow weed at home for nearly two decades. They were given that right in 2000 when voters passed Amendment 20 — a constitutional provision giving patients the right to access 12 plants. But they can have more "if such greater amounts were medically necessary to address the patient's debilitating medical condition." That's what's called an extended plant count, which doctors can recommend and the state health department tracks. Notably, extended plant counts are an "affirmative defense" to be raised in court — not an unfettered right.
Red card in hand, some patients opt to grow at home rather than buy from a dispensary, for the benefits of cost savings and personal agency over their medicine. Medical home grows were unencumbered by much restriction or regulation — until, that is, recreational marijuana came along.
Amendment 64 authorized adults to consume cannabis just for the fun of it. Overnight, Colorado became the weed capital of America, with more pot shops dotting commercial strips, more novice growers raising plants at home, and less than ever that Johnny Law could do about any of it. But while some in the industry cashed in on the novelty by playing by the rules, others bent the rules to serve customers outside the regulated market. Post-legalization, consumers still skirt the system because they can't afford the heavily taxed in-store products, they live in opt-out cities like this one or they're from states where marijuana is still illegal.
Thus, a new kind of black market cropped up. According to the agencies that track it, growers flocked to Colorado en masse, got doctors' recommendations for extended plant counts and set up large-scale cultivations in rented houses — all under the guise of the state's lax laws. At their most extreme, these operations dangerously alter houses to accommodate hundreds of plants. Colorado Springs Fire Marshal Brett Lacey reported hazards to City Council twice last year, presenting photos of torn-out stairs, dangerously rewired electrical and insidious-looking mold.
The Drug Enforcement Agency claims the product grown in these worst-of-the-worst residential cultivations often gets diverted out of state. Illustrating that, the Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA) — a regional, multi-agency law enforcement group — reported during the early legalization years, from 2013 to 2015, highway patrol seizures of Colorado-grown marijuana crossing state lines rose nearly 40 percent. And with that came other crime, according to law enforcement officials including DEA agent Tim Scott, who once memorably told City Council that marijuana home grows are "the new meth houses" because they bring violence, human trafficking and other laundering schemes.
That horror show inspired local and state lawmakers to limit residential grows, even though interstate drug trafficking is already a federal crime. The DEA still deals with those, leaving local agencies to deal with small-fry operations, like the guy who grows enough weed to ship a half-pound to his cousin in Minnesota, and the authentic medical grows, like the cancer patient who hadn't heard the plant limit got lowered.
Still, even dealing with just those, local law enforcement has a lot on its plate. The Metro Vice, Narcotics and Intelligence Division, a regional 65-member multi-agency task force, investigates and busts illegal marijuana grows, among lots of other crimes, in the Fourth Judicial District. They have a backlog of about 500 Crime Stopper tips related to residential marijuana, but only get around to busting a grow about every two or three weeks. That's because Metro VNI's marijuana team, about five detectives from various agencies, just doesn't have the resources to do more.
For a notoriously secretive division, its members are eager to talk about the logistical and bureaucratic headache. The bottleneck, they say, really comes down to storage — there's just not enough space for so many marijuana plants.
"The big elephant in the room is: Once you take it, where do you put it?" says Sgt. Roger Vargason, a VNI member employed by the Colorado Springs Police Department. "We don't have anything in place where law enforcement could resell it, like we do with cars. [Marijuana] is like guns. If you auction off seized marijuana, you're just putting it back on the streets. We can't. There's just no way."
With civil asset forfeiture, like those seized-car auctions, police only sell property once its owner has been convicted of a crime. But when the property is marijuana plants, case law says they can be destroyed regardless of due process.
The legality of that practice was only recently clarified. After a lower court decided that police don't have to "maintain" seized marijuana plants (i.e., keep them alive and healthy), the Colorado Supreme Court ruled in January that even if charges were dismissed or the defendant was found not guilty, police still wouldn't have to return the seized marijuana plants (see "Not your property."). For law enforcement, the decision was a win, since playing farmer to a crop of marijuana plants while a case drags through the courts isn't exactly within their skill set and handing back marijuana plants made them feel like drug dealers. Plus, seized plants, dead or alive, would overwhelm their entire evidence locker.
After the Supreme Court ruling came down, Metro VNI worked with the Fourth Judicial District Attorney's office to devise new standard operating procedures for processing, storage and destruction of seized marijuana plants. But, it's not a whole lot simpler.
Even without an obligation to care for and potentially return a crop of seized weed plants, it can still take a month, at least three officers and some fancy equipment to dispose of marijuana grows. There's a methodical back-and-forth to get probable cause before cops can go in to scientifically photograph, sample and get a snip of the plants, followed by a drying phase. Five pounds gets saved, packaged and stored in evidence pending trial and the rest gets trimmed, mulched and bagged. The final step is incineration. Hence, the timeline for busting illegal grows is largely dictated by the limited available space in which to dry and store plants.
The front end of the process won't speed up, even when the new plant limit goes into effect, in part because a forthcoming legal challenge to HB1220 could stall implementation (See "Growers' last stand"), but mostly because Metro VNI doesn't want to trample constitutional rights.
"We don't want to just knock the door off its hinges and send people to jail," Vargason says. "We always give people the chance to get into compliance on their own, especially if they don't know the law. The only reason we take plants is to charge somebody."
Another complication: Only officers, not contractors, can handle seized bud. That means law enforcement professionals, part of an elite investigations group and paid up to $50,000 a year, spend their time on the taxpayer-funded clock harvesting bud. That's time and energy not spent on other, more serious crimes. After all, Metro VNI doesn't only do home-grow cases — they also police licensed marijuana facilities, alcohol-serving establishments, prescription drug fraud, human trafficking, prostitution, gang activity and illegal drugs.
Investigators have different opinions on whether busting home grows detracts from their other duties.
"We've been so busy with this, it could easily consume us," says Vargason. "I'm hoping we get additional bodies [to work on marijuana.]"
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Lt. Joe Roybal, also in the division but employed by the El Paso County Sheriff's Office, agrees that busting home grows is slow work, but he doesn't think it really eats into their other casework. "Waiting for [plants] to dry doesn't really slow us down because once you take down a large grow, and it's got to sit for a week or two, we're out investigating the consumption clubs, illegal rec sales, head shops," he says. "There's still plenty for us to do."
Their boss, Commander Sean Mandel of CSPD, says "marijuana enforcement is definitely resource-intensive" and "if we didn't have to respond to all these marijuana issues with the gray and black market, we'd have more detectives available to respond to other narcotics problems within the city and the county."
Heroin and meth are both on the rise locally, as are other types of crime, in an environment where the whole police department, not just those assigned to Metro VNI, is short on bodies.
"We do have to prioritize, and invest more in, cases involving heroin and meth. Those hardcore illegal drugs always come first," says Mandel. "And if I felt like we didn't have enough [resources] to handle all the activity, I'd make a request through my chain of command."
For now, though, he doesn't: "I think we're doing OK."
Still, as Vargason notes, the age of legalized marijuana has undoubtedly brought unforeseen challenges for law enforcement.
"The people voted for [legal marijuana] and now we're figuring out all this stuff that nobody ever thought about," he says.
"It's really just a change in mindset for us."