Judicious Federal Drug-Policy

Judicious Federal Drug-Policy


After nine months of eager anticipation for legal buffs and potheads, the U.S. Department of Justice (DOJ) on August 29 finally announced how it would respond to the legalization of recreational marijuana use in the states of Colorado and Washington.

In a smart move respecting federalist principles and federal law enforcement constraints, the DOJ will allow Colorado and Washington to set up systems to permit, but closely regulate, the production, sale, and use of marijuana. In a memo to U.S. attorneys across the country, Deputy Attorney General James Cole affirmed the illegality of marijuana under federal law, but stated that the federal government should not devote its limited resources to small-scale enforcement.

Importantly, the memo outlines a list of eight enforcement priorities of particular interest to the federal government. The DOJ has said that it hopes state regulatory regimes will serve to protect these interests. These include the prevention of:

-Distribution of marijuana to minors,

-Revenue from marijuana sales going to criminal enterprises and gangs

-Diversion of marijuana from states where it is legal to other states

-Marijuana activity as a pretext for the trafficking of other illegal drugs

-Violence and use of firearms in the distribution of marijuana

-Drugged driving and other adverse public health consequences

-Growing of marijuana on public lands and environmental dangers

-Possession or use of marijuana on federal property

These happen to be the exact same enforcement policies that have traditionally driven DOJ involvement in marijuana, as state and local authorities have usually been the ones to enforce other infractions including small-time use and production. In theory, the DOJ is not changing a thing, but in practice, it will likely display a tighter focus on these issues, declining to crack down on state-legal dispensaries and users. It will continue to enforce its traditional priorities of federal importance, but will not expend extra resources to make up for the lack of state and local enforcement on smaller-scale issues.

This is the smartest and most economical response for the federal government, and the best for the states of Washington and Colorado. The eight enforcement priorities should guide these states’ regulatory framework, while also reassuring the sovereignty other states where neither medical nor recreational marijuana have been legalized. Moreover, if the regulatory schemes in these states do not protect these stated federal interests, the federal government still possesses the right to challenge legalization laws.

However, a few questions arise regarding the situation: Under a different president and different DOJ appointments, might this enforcement strategy change in 2016? A hard-liner on drugs might use his nominations and influence to extend the scale of federal marijuana law enforcement in these states. How exactly will U.S. attorneys interpret these enforcement priorities? Multiple U.S. attorneys’ offices have stated that the memo will not affect their anti-pot work, including U.S. attorney for Northern California Melinda Haag, who has aggressively cracked down on state-legal medical marijuana dispensaries. Will national banks and credit-card companies be allowed to deal with dispensaries? Right now, Visa and Mastercard refuse to process payments from dispensaries, and financial institutions are reluctant to invest in marijuana-related businesses for fear of violating money-laundering laws.

As Washington and Colorado begin enacting a regulatory framework and as marijuana-related businesses seek to attract investment, it will be interesting to see how the gray areas in this newly legalized industry play out.

[Image Credit: http://www.tokeofthetown.com/2011/09/medical_marijuana_dispensaries_not_linked_to_crime.php]