Washington State’s Pot Paradox

Larry Harvey inches his Red Chevy TrailBlazer up a rutted mountain path, beneath a canopy of branches so jagged you flinch in the front seat, and into a remote clearing. All you can see for miles are the pines carpeting the foothills of the Selkirk range. If not for the sign propped against a tree, painted white with a green cross, you’d never guess this secluded glade in northeastern Washington was the site of a medical-marijuana garden that may ruin his life.

Harvey, 70, logged 30 years as a long-haul trucker before retiring here in 2006. By then, all those miles had worn out his knee and he suffered from gout. To ease the pain, a doctor suggested cannabis. So Larry and his wife Rhonda began tending a plot on their 34-acre (14 hectare) homestead outside Kettle Falls, a pinprick near the Canadian border that bills itself as the home of “1,640 friendly people and one grouch.” Rhonda, who struggles with arthritis, would mix the plant with butter in a stone crock, store it in mason jars alongside the homemade venison sausage and vacuum-sealed salmon lining the pantry and bake sugary confections. “I couldn’t believe it the first time I tried it,” Larry says. “In five minutes, the pain was gone.”

Until pot brought a new kind of pain. On July 28, the Harveys–along with two family members and a friend who shared the garden–will go to trial on federal drug charges. The defendants are doctor-authorized patients who say they used the drug for palliative purposes, as the state’s medical-marijuana law has permitted since 1998. Each faces a minimum of 10 years in prison. Barring a plea, they will almost certainly be convicted.

The trial will begin just three weeks after Washington’s first recreational-pot shops opened for business. And while the Harveys’ case hasn’t killed the vibe in the Evergreen State, it highlights the legal paradoxes in states that have taken steps to relax marijuana laws. In a place where you can now buy grams of high-grade OG Kush over the counter when the whim strikes, it remains a federal crime to grow, sell or possess the drug. And while the Obama Administration has urged law enforcement to let the legalization experiments play out, that guidance isn’t always followed by federal prosecutors. Which means legal marijuana isn’t exactly legal.

Even within Washington State, the standards seem to shift from city to city. Just down the road from the Harveys, a medical patient posts glamour shots of his towering plants on Facebook. In Spokane, on the state’s eastern edge, billboards point the way to dispensaries. In Seattle, where the district attorney has stopped prosecuting minor marijuana cases, discerning patients can shop at more than 200 medical dispensaries, compare strains at artisanal markets or summon pot to their doorstep as easily as ordering a pizza. But in the rolling apple orchards of central Washington, a prospective merchant is suing the city of Wenatchee for denying him a license because the drug remains illegal under federal law. Thirteen counties and several dozen cities have enacted moratoriums or bans on pot sales.

“Marijuana is legal here, but what exactly does that mean?” asks Jane Korn, the dean of Gonzaga Law School in Spokane. “Nobody really knows.”

The Path to Legal Pot

The confusion in Washington State bears little resemblance to pot’s smooth debut in Colorado, which also voted to legalize recreational marijuana in 2012. Shops across Colorado opened on time in January. Since then, crime is down, job growth is up, and robust sales have yielded more than $17 million in tax revenue for the state. But Colorado had an advantage: a regulatory system in place to govern medical marijuana, on which the state built its recreational market.

Washington legalized medical marijuana in 1998 but never got around to licensing or regulating its sale. With little oversight, the industry flourished; until recently, there were reportedly more medical-pot shops in Seattle than Starbucks outlets. Doctor-certified patients are permitted to grow their own weed and share it with other patients. It became impossible to separate seriously ill patients from the stoners feigning maladies to finagle medical consent. So most stores stopped trying.

Legalization was cast partly as a way to bring order to this hazy scene. To address safety concerns, proponents of the ballot initiative known as I-502 proposed tough penalties for users who exceed a measured threshold for stoned driving. To prevent rogue dealers from shipping weed across state lines, they promised modest cultivation caps. And they built a wall between growers and sellers, using the state liquor industry as a model. The pitch worked. In November 2012, 56% of voters made Washington one of the first two states in the world to approve the sale of recreational cannabis to adults over 21.

The task of assembling this market fell to Randy Simmons, deputy director of Washington’s Liquor Control Board. Simmons, whose last experience with weed was smoking it in the 1970s, had little idea where to begin. With a year to prepare, he canvassed cannabis experts, even quizzing local dealers. The conclusions were sobering. “It’s going to be a bumpy start,” he says. “There’s no question.”

The immediate challenge is competition. The handful of new, regulated legal sellers will have a hard time luring customers from the hundreds of cheaper medical dispensaries already scattered across the state. Meanwhile, a three-tiered tax system that even Simmons calls “terrible and inefficient” may push smokers and sellers alike toward the black market. For now, his goal is for legal weed to make up just 13% of the overall market for dope in the state. By the end of the year, the figure rises to about 25%.

That may be optimistic, because the few sellers who have managed to navigate the state’s regulatory labyrinth say there isn’t anything to sell. The balky new system produced a lack of licensed growers, which means long lines and supply shortages. “I’ve run the numbers every which way,” says Carol Ehrhart, a store owner and former accountant in Spokane, “and realistically, I won’t have product to put on the shelves.”

And then there are the feds. In August 2013, the Department of Justice issued a memo suggesting it would intervene only if its enforcement priorities were threatened. But federal law supersedes that of states, which is why pot merchants are shunned by banks and forced to pay six-figure tax bills with suitcases of cash. Prosecutors have the discretion to crack down anytime. “Nothing is legal under I-502,” says Douglas Hiatt, a cannabis activist and criminal-defense attorney in Seattle. “They can still put you in prison for having it. They can still put you in prison for growing it. And they can still come after you for selling it.”

They came for the Harveys on Aug. 9, 2012. A patrol helicopter had spotted their garden and alerted authorities. At 10:47 a.m., eight officers in Kevlar vests showed up at the tidy one-story home with wagon wheels fastened to the front porch and a follow your dreams plaque in the kitchen. The officers found about 70 marijuana plants in the field a quarter-mile above the Harvey home, marked by the green-and-white sign denoting a medical grow.

Larry wasn’t worried at first. “We were legal,” he says. But regardless of whether the Harveys complied with state law, they were in violation of the federal Controlled Substances Act, which classifies pot as a Schedule I drug. “You can be prosecuted for two marijuana plants … in federal court,” Earl Hicks, an assistant U.S. attorney in Washington’s Eastern District, said during a hearing in the case.

Seven days after their first visit, the agents came back. This time the raid was led by the U.S. Drug Enforcement Administration, and the officers brandished a federal warrant. Rhonda sat on a worn chair in the living room as they ransacked the small house. Federal prosecutors charged the five defendants with growing and distributing cannabis, citing the legal firearms they recovered, drug paraphernalia and financial ledgers the authorities say were sales records. The Harveys say the records denote overhead costs paid by the members of the medical-marijuana collective, which also included Rhonda’s son, his wife and a family friend, who live in the Seattle area and say they lack the space to grow their own crop.

A Tale of Two States

The Harveys’ case has perplexed observers in this rugged patch of the inland Northwest. “In Stevens County, everybody has a gun and a bong,” says Jon Snyder, co-chair of the city council’s subcommittee on marijuana policy in Spokane, one county to the south. Gregory Carter, the medical director of a Spokane hospital, examined the Harveys’ medical records and court documents. He told TIME the size of their stash was consistent with personal use, not trafficking.

And the prosecution is all the more baffling given that attitudes elsewhere are so laissez-faire. On a sunny afternoon in late June, I joined Hiatt for a ground-level tour of Seattle’s sprawling medical-marijuana economy. Zipping down Rainier Avenue South in his Subaru, we passed about a dozen medical dispensaries in the space of a mile, including three on one block. Hiatt pointed at the unmarked door of a dingy building concealing a hidden garden outfitted with industrial-quality vents. “Huge grow,” he said.

But you don’t need a local to find the dispensaries. They’re listed on a website called Weedmaps, which collates locations, prices and product reviews. The directory also includes some of Seattle’s cannabis “farmers’ markets,” where vendors pay $1,800 per month to showcase artisanal bud. These sellers are not all licensed business owners but rather growers who say lower overhead costs allow them to “share” quality herb at better prices. “I shouldn’t call it selling,” says vendor Allison Bigelow. “It’s hard to provide medicine for people and stay within the confines of the law.”

To gain entry to a farmers’ market, you need medical authorization. But Hiatt wheedled our way into a bazaar called Amsterdam Exchange, in the Lake City neighborhood. In a light-filled room above a cannabis café (one specialty: the “baked” potato), glass display cases are crammed with jars of crystally pot and weed-laced treats ranging from cookies to sour gummy worms. Vendors pass out free samples, as I learned when one pressed a lilac-colored nugget into my hand. “Double Purple Doja. Heavy indica,” he said. “Gives you couchlock.”

For those who can’t crack the medical market, illegal delivery services can bring high-grade weed to your home within the hour. A pair of University of Washington students are preparing to roll out an iPhone app called Canary, billed as “Uber for marijuana.” The owner of a similar venture says his business became so popular in its first few months that it swelled to 12 drivers, who patrolled 90 miles (145 km) of Interstate 5, selling heat-sealed packages of Dutch Treat or Sage & Sour at $45 per eighth of an ounce. On the advice of a lawyer, the service now confines itself to the Seattle area, where the chances of prosecution are lower, and includes a website disclaimer that it’s strictly for medical patients. In truth, it isn’t. The ease of undercutting the legal market, the owner explained over coffee at a Denny’s near the airport, produced a simple conclusion: “The law is going to fail.”

To prevent that, the state legislature is likely to modify it next year. And as more stores open, legal shops should begin to supplant illicit competitors. “It’s not going to be O.K. to sell untested duffel bags grown in somebody else’s basement,” says Alison Holcomb, the law’s main author.

The fate of the experiment will reverberate elsewhere. Eight states plus the District of Columbia are considering bills to reform pot laws, according to the Marijuana Policy Project, a legalization advocacy group. Legal weed may be on the ballot in several more states in 2016. Supporters hope Washington’s stumbles will be as instructive as Colorado’s successes. “We needed an imperfect law in Washington so the rest of the nation would have an example,” says Vivian McPeak, head of Seattle’s Hempfest.

That doesn’t spare Larry Harvey, whose case is a reminder of the risks people may not realize they’re running. Gazing over the pine trees above Kettle Falls, he worries he will die in prison for a crime he says he didn’t know he was committing. “I’m probably going to wind up in the big house for quite a while,” he says. “It just isn’t right.”n