Crime, Laws, and Legalization: Perceptions of Colorado Marijuana Dispensary Owners and Managers

• Author: Andrew J. Thompson,Kyle C. Ward,Mary K. Evans,Brian M. Iannacchione
• Published date: 01 February 2019
• DOI: 10.1177/0887403417721606
• Date: 01 February 2019
• Subject Matter: Articles

https://doi.org/10.1177/0887403417721606

Criminal Justice Policy Review

2019, Vol. 30(1) 28 –51

© The Author(s) 2017

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0887403417721606

journals.sagepub.com/home/cjp

Article

Crime, Laws, and

Legalization: Perceptions

of Colorado Marijuana

Dispensary Owners and

Managers

Kyle C. Ward1, Andrew J. Thompson1,

Brian M. Iannacchione1, and Mary K. Evans1

Abstract

The legalization of recreational marijuana in Colorado has complicated the

relationships between local, state, and federal governments. Such challenges have

trickled down to proprietors, managers, and employees within the new billion-dollar

industry. Dispensary owners and managers often must navigate the implementation

of new laws and policies in how they operate their business. The current study

surveyed marijuana dispensaries across Colorado to explore owners’ and managers’

perceptions of operating their business while considering federal banking laws and

concerns with state laws conflicting with federal laws, particularly in context of the

2016 presidential election.

Keywords

marijuana legalization, drug policy, federalism, perceptions

The doctrine of federal preemption of state law is based on the U.S. Constitution’s

Supremacy Clause, which generally gives Congress the power to preempt state law.

Essentially, this doctrine states that when state and federal laws directly conflict, fed-

eral laws can take precedence over state law. Sometimes the federal government inter-

venes and sometimes it does not, which can result in challenges to those states that

1University of Northern Colorado, Greeley, CO, USA

Corresponding Author:

Kyle C. Ward, Assistant Professor, Department of Criminology and Criminal Justice, University of

Northern Colorado, Campus Box 147, Greeley, CO 80639, USA.

Email: Kyle.ward@unco.edu

721606CJPXXX10.1177/0887403417721606Criminal Justice Policy ReviewWard et al.

research-article2017

Ward et al. 29

pass laws that contradict federal law. For instance, the Support Our Law Enforcement

and Safe Neighborhood Act is one example where the Justice Department enforced the

supremacy clause by suing Arizona (Arizona et al. v. United States, 567 U.S., 2012)

because immigration law is federally enforced and not a state issue. On the contrary,

prostitution in parts of Nevada is legalized and highly regulated but the federal gov-

ernment has not enforced the doctrine of preemption even though prostitution violates

federal law.

A current test for the federal government will be how they choose to enforce the

contradiction between the federal and state laws surrounding the legalization of mari-

juana at the state level. Under federal law, the sale, use, and distribution of marijuana

for any purpose are illegal. Despite federal law, Colorado was the first state in the

United States to permit the use, sale, and distribution of marijuana for recreational use,

which is subject to strict regulations. Yet, debate continues regarding the constitutional

questions surrounding state-enacted marijuana laws by legal scholars (Chemerinsky,

Forman, Hopper, & Kamin, 2015; Mikos, 2009). For now, federal officials are choos-

ing not to enforce federal law in Colorado, but that could change under the new admin-

istration and cause further challenges to marijuana compliance with regulations

imposed by the state and restrictions by the federal government.

The 2012 referendum to legalize marijuana in Colorado ushered in a new billion-

dollar industry within the state (Baca, 2016). Although becoming legal at the state

level, the use, cultivation, and sale of marijuana remains federally illegal because of

the Schedule I drug status of marijuana. The incompatibility of federal and state law

has generated much confusion among affected institutions and agencies involved in

the regulation and oversight of the marijuana industry. The uncertainty that state offi-

cials (e.g., legislatures, courts, and executive officials) encountered in determining

how to enforce these laws prior to the implementation of recreational marijuana mar-

kets in Colorado and Washington led Schwartz (2013) to dub the situation a “federal-

ism crisis.” Although the connotation of crisis may be an exaggeration in describing

the situation, substantial issues of federalism continue to permeate in the context of

marijuana legalization. For example, although the federal government and the govern-

ments of states with legal marijuana industries have established a state of affairs that

allows these businesses to function relatively unimpeded, they are not comprehensive

and potentially temporary solutions to the federalism dispute. Rather, the failure to

convincingly define the authority of state and federal governments over the legal sta-

tus of marijuana presents the potential for the federal government to attempt a disman-

tling of states’ marijuana markets if a presidential administration chose to do so.

Beyond being a fundamental issue between states’ rights and the power of the fed-

eral government, the federalism dispute creates practical challenges for those operat-

ing what the authors call a federally illicit, state sanctioned (FISS) business. This term

refers to the fact that dispensaries, though operating legally at the state level, are in

defiance of federal law. This may be attributed to the fact that it is not just state offi-

cials who were or are continuously tasked with resolving the disagreements between

state and federal legislation. Financial institutions, such as the Federal Deposit

Insurance Corporation (FDIC) and the Internal Revenue Service (IRS) have had to