WASHINGTON – The Justice Department has announced that it will not challenge the implementation of laws adopted by referendums in Colorado and Washington that permit the production, consumption and sale of marijuana to those over the age of 21.
The decision was outlined in a memorandum dispatched Thursday to federal prosecutors across the country by Deputy Attorney General James Cole, who explained that the agency intended to devote its limited resources to more urgent needs. He told justice officials to refrain from interfering with state legalization efforts as well as those licensed to engage in the production and sale of marijuana.
Cole emphasized that the federal government has traditionally relied on state and local authorities to address marijuana activity through enforcement of their own narcotics laws. The decision to let Washington and Colorado move forward without federal interference is premised on the expectation that the states will implement strong and effective regulatory and enforcement systems that address potential threats to public safety.
Prosecutors could receive a green light to step in if the state laws and regulations fail to prevent distribution to minors, revenue from sales going to gangs or cartels, operations from serving as a front for trafficking in other drugs, impaired driving and growing on public land.
The department has informed Colorado Gov. John Hickenlooper and Washington Gov. Jay Inslee that it is deferring its right to challenge their legalization laws. But if any harms materialize federal prosecutors are expected to act aggressively to bring individual prosecutions focused on federal enforcement priorities.
“A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice,” Cole wrote to the nation’s U.S. attorneys. “Jurisdictions that have implemented systems that provide for regulation of marijuana activity must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities.”
Cannabis will remain a Schedule I controlled substance under the decision. Federal prosecutors will be left with the authority to interpret Cole’s directions and carry them out as they see fit.
Regardless, the move represents a major policy shift. Just two years ago the Justice Department declared drug agents would attempt to shut down large-scale and commercial marijuana operations. But under the new guidelines the size or commercial nature of a marijuana operation will not prove sufficient to trigger any federal prosecution.
Josh Earnest, an assistant press secretary for President Obama, said the White House approved of the steps recommended by Attorney General Eric Holder.
“The president has talked about the appropriate use of prosecutorial resources and that applying them to individual users, particularly those who are sick or their caretakers, is probably not the best use of law enforcement resources,” Earnest said. “But having laws in place so that these law enforcement resources can be targeted at drug kingpins and traffickers and others who contribute to violence on our streets is a very good use of those law enforcement resources.”
Reaction from those advocating marijuana’s legalization was quick and positive.
“This is a historic step forward,” said Erik Altieri, communications director for NORML, an organization that supports legalization efforts. “Assuming the Department of Justice stays true to their word, these states and others will no doubt move forward with the state-licensed regulation of cannabis for adults. The public has evolved beyond the simplistic, failed policies of cannabis prohibition and are seeking pragmatic, regulatory alternatives. It is encouraging to see that the federal government no longer intends to stand in their way.”
Twenty states and the District of Columbia thus far have adopted laws that permit consumption of cannabis authorized by a doctor’s prescription. Seven of those states, along with the district, also allow the state-licensed cultivation and sale of marijuana to qualified patients. Two states — Colorado and Washington — voted about 10 months ago to permit the licensed commercial production and retail sale of cannabis for non-medical purposes. Both states are expected to begin production and sales early next year.
The Justice Department decision appears to line up with public opinion. A poll conducted by the Pew Research Center for the People & the Press last April found that a majority of Americans, 52 percent, favor legalizing the use of marijuana while 45 percent say it should not be legalized.
Support for legalizing marijuana has risen 11 points since 2010, according to Pew. The change is even more dramatic since 1969, when a Gallup survey found that just 12 percent favored legalizing marijuana while 84 percent opposed legalization.
The administration’s decision was not universally embraced. Sen. Chuck Grassley (R-Iowa), ranking member on the Senate Judiciary Committee, said President Obama and the Justice Department are taking drug enforcement in the wrong direction.
“Time and again we have seen the Obama administration decline to enforce laws that it finds inconvenient or that it simply doesn’t like,” Grassley said. “Today’s announcement is the latest example. The administration is now effectively instructing law enforcement not to prioritize the prosecution of the large-scale distribution and sale of marijuana in certain states. This sends the wrong message to both law enforcement and violators of federal law. Apprehending and prosecuting illegal drug traffickers should always be a priority for the Department of Justice.”
Grassley won’t have to wait long to voice his complaints. Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, has scheduled a hearing for Sept. 10 to discuss the conflicts between federal and state authorities over marijuana laws. Cole is expected to be among those called to testify.
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