DOJ Won't Challenge State Pot Laws, But Controlled Status of Marijuana Not Changing

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.