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November 30, 2012

"Will the Feds Crack Down on Pot or Look the Other Way?"

The question in the title of this post is the headline of this new Businessweek article.  Here are excerpts:

A week after voters in Washington State and Colorado approved Election Day ballot measures legalizing recreational marijuana, Washington Governor Chris Gregoire got on a plane to D.C.  A Democrat, Gregoire wanted to know if the new law would put her state at odds with President Obama, whose administration has raided hundreds of marijuana dispensaries in California, where medical pot has been legal under state law since 1996.

Gregoire met with U.S. Deputy Attorney General James Cole, who oversees enforcement of the Controlled Substances Act, the 42-year-old federal law that designates cannabis as a Schedule I controlled substance, the same category as heroin and LSD.  If her state’s liquor control board began issuing permits to aspiring pot entrepreneurs, Gregoire wanted to know, would federal agents soon head her way?  Cole didn’t have the answers she wanted. “They are ‘looking at the issue.’ That was about the only reaction we got,” says Gregoire’s spokesman, Cory Curtis.  Cole, who declined to be interviewed, wasn’t merely stonewalling.  He likely couldn’t answer the question because the Department of Justice has yet to spell out a consistent policy for dealing with the growing number of states legalizing pot to some degree, in violation of federal law....

For the most part, the Justice Department has avoided prosecuting pot-smoking cancer patients and has only sporadically raided dispensaries suspected of breaking local laws by operating too close to a school, supplying marijuana to nonpatients, or moving suspiciously large amounts of the drug.  But the Washington and Colorado laws, which call on those states to regulate recreational marijuana like liquor — issuing business licenses to pot stores and collecting tax revenue on sales — renews pressure on the administration to let would-be sellers and smokers know whether they’re putting themselves at risk of prosecution.  “That’s a harder question,” says Erwin Chemerinsky, a professor of law at the University of California at Irvine.  “It’s the state actually facilitating the sale of marijuana, as opposed to just not prohibiting” its use.

In the coming months, the Justice Department must decide whether to sue Colorado and Washington to keep them from issuing commercial pot licenses, a move that would be unprecedented in marijuana cases.  If it does take the states to court, says Allen St. Pierre, executive director of the marijuana advocacy group Norml, it “will be a rocket ride all the way to the Supreme Court.”

Short of that, Justice could instruct prosecutors to go after the most flagrant violators of federal law.  First prosecutors would have to figure out how to define flagrant, since all sale and possession of marijuana is technically illegal.  If it sets out guidelines saying what is and isn’t allowed, the department would be condoning illicit activity.  “I don’t think they know what to do,” says Ethan Nadelmann, executive director of the Drug Policy Alliance, a pro-legalization group. “They’re juggling a lot of variables.”

In related coverage, ABC News has this lengthy new piece headlined "Legal Pot at 'Tipping Point,' Experts Say."

November 30, 2012 at 10:00 AM | Permalink


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This one is easy. Having been at DOJ and in the USAO under administrations of both parties, and in both political and career positions, this is what's going to happen: DOJ is never going to issue an official policy granting the states an exemption from federal law. Such would not only be inconsistent with the Supremacy Clause, it would set a dreadful precedent (suppose a State A then makes cocaine legal and State B makes LSD legal -- all in just "user" amounts, mind you).

What will happen is a continuation of the status quo, in which the feds ALREADY almost entirely look the other way at personal use amounts of pot, but reserve the option of going after a person who wants to poke the bear by, e.g., smoking a bong on the steps of the federal building. If you want to make a point of the incorrect view that state law trumps contrary federal law, the feds will (and should) send a little message.

Coloradans and Washingtonians who want to "take advantage" of their states' new laws just need to use common sense and prudence. Human beings who live without those two virtues are going to get themselves in plenty of trouble no matter what the status of state or federal law.

Posted by: Bill Otis | Nov 30, 2012 10:23:32 AM


I confess to being extremely conflicted over legalization, seeing pros and cons to both sides of the argument. My question for you is this: what do you see as the tipping point where the feds might consider legalization or de-criminilization of marijuana? Twenty states? Thirty? This is pure speculation to be sure, but I am interested in your view.

Posted by: defendergirl | Nov 30, 2012 12:41:54 PM

defendergirl ,

Under a theory of congressional inertia and inaction I would put the number somewhere between 30 and 35. More than a bare majority to be sure but not as many as would be required to pass a constitutional amendment (not that any amendment on pretty much any subject has a realistic chance at getting adopted, just using that as an upper boundary figure).

While Bill Otis' experience may well give him special insight into the processes that will eventually arrive at an executive determination about what to do wabout the instant matters of Washington and Colorado I'm not at all sure the same holds true with regard to Congress, which could (but won't) shut down the entire drug war enterprise tomorrow if it so decided.

Posted by: Soronel Haetir | Nov 30, 2012 4:32:01 PM

Defendergirl --

Good question. The executive branch will not suspend its present enforcement (or non-enforcement) until Congress changes the CSA. I know better than to try to predict what Congress will do, except that, for the foreseeable future, as Soronel says, I doubt it will do anything.

I do not think it's mere inertia that keeps 20 or 30 states from de jure legalization. I think, in line with most of the polling, that a small but consistent majority opposes legalization on the merits. While this is the case, I doubt anything like 20 states are going to legalize.

Posted by: Bill Otis | Nov 30, 2012 10:54:09 PM

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