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August 29, 2013

DOJ and Obama Administration (finally) report plans concerning federal marijuana enforcement

As reported in this Washington Post piece, today the Obama administration "said it will not stand in the way of Colorado, Washington and other states where voters have supported legalizing marijuana either for medical or recreational use, as long as those states maintain strict rules involving distribution of the drug." Here is more:

In a memo sent Thursday to U.S. attorneys in all 50 states [and available at this link], Deputy Attorney General James M. Cole detailed the administration’s new stance, even as he reiterated that marijuana remains illegal under federal law.

The memo directs federal prosecutors to focus their resources on eight specific areas of enforcement, rather than targeting individual marijuana users, which even President Obama has acknowledged is not the best use of federal manpower. Those areas include preventing distribution of marijuana to minors, preventing the sale of pot to cartels and gangs, preventing sales to other states where the drug remains illegal under state law, and stopping the growing of marijuana on public lands.

A Justice Department official said that Attorney General Eric H. Holder Jr. had called the governors of Colorado and Washington around noon Thursday to inform them of the administration’s stance.

The official said Holder also told them that federal prosecutors would be watching closely as the two states put in place a regulatory framework for marijuana in their states, and that prosecutors would be taking a “trust but verify” approach. The official said the Justice Department reserves the right to revisit the issue....

Until Thursday, the Justice Department and the White House Office of National Drug Control Policy had remained silent about those initiatives, despite repeated requests for guidance from state officials....

The issue has been percolating since Obama took office, and he has repeatedly faced questions about the tension between differing federal and state laws.

This (relatively short) official DOJ Press Release provides this account of the decision:

Today, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.

In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute.  To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize.  These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area.

Outside of these enforcement priorities, however, the federal government has traditionally relied on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws.  This guidance continues that policy.

For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance.  These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time.   But if any of the stated harms do materialize — either despite a strict regulatory scheme or because of the lack of one — federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.

Cross-posted at Marijuana Law, Policy and Reform

UPDATE:  Jacob Sollum has collected some of the early reactions to these developments via this piece at Forbes titled "Reactions To DOJ Marijuana Memo: Dismay, Exuberance, Skepticism."

August 29, 2013 at 02:56 PM | Permalink


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Another announcement from Holder that's less than meets the eye. As I said on an earlier thread, any DOJ suit on against Colorado and Washington would have been very problematic. Indeed, I don't even know what the cause of action would have been. That they adopted a law?

The CSA hardly makes it illegal for states to adopt laws. What it makes illegal are acts: The possession and distribution of certain drugs. The AG has made clear that the CSA's prohibition against those things will continue to be enforced, within the resources available to DOJ.

This is so much posturing. The feds prosecute next to zero personal use, simple possession cases now, in Colorado, Washington and everywhere else. So what the AG is actually saying is that nothing is changing.

I had not previously been aware that "nothing is changing" qualifies as news, but that was then.

P.S. Now about that Red Line in Syria......

Posted by: Bill Otis | Aug 29, 2013 3:08:57 PM

Are you saying, Bill, (1) that this is NOT really a change in DOJ policy in any way, and (2) that this is no big deal and should not be the basis for any criticism of AG Eric Holder?

Just wanting to check/confirm your position/views before we start seeing/hearing others possibly make a big deal out of this and/or start to criticize AG Holder for this.

Posted by: Doug B. | Aug 29, 2013 3:53:59 PM

Doug --

(1) It is not a change in DOJ policy, correct. There has never to my knowledge been a DOJ suit against jurisdictions that purport to legalize or partly legalize dope, and there's not going to be such a suit now either.

(2) Holder's statement is a basis for some mild criticism. Holder should have issued a shorter statement: "The state laws in Washington and Colorado do not and will not affect the Department's right and obligation to enforce federal law in the same manner and to the same extent we have been doing in the past. Under concepts of federalism I accept, (a) states are free to adopt their own laws without comment from the federal government, and (b), under the Constitution, federal law nonetheless remains supreme."

End of story, meaning that there really isn't a story.

Posted by: Bill Otis | Aug 29, 2013 4:28:30 PM

It'll be interesting to see if there's any change in the feds busting and shutting down medical marijuana dispensaries, which has been a frequent occurrence in California (and possibly other MMJ states, I don't know). Until that changes, I'm inclined to agree with Bill that this is just a lot of posturing with no real import.

Posted by: vachesacree | Aug 29, 2013 6:26:15 PM

Bill is correct. Holder was on 60 Minutes. He does not want people traveling to legal states, buying a ton, and taking it back to their states, where it is illegal. Seems reasonable federal role.

I am not welcome on Crime and Consequences, where Bill argues against legalization. So I hope he can respond here.

I see his points. However, Bill must now call for the prohibition of alcohol, and tobacco. First, the addictiveness of those two product is around 10 times stronger, and the harm is literally around 10,000 times greater. I am opposed to the current insane situation. Marijuana, no. Alcohol and cigarettes, yes. The lawyer is nuts.

I can support either legalization of marijuana, or prohibition of alcohol and tobacco with Draconian enforcement, such as executing 10,000 dealers a year, and lashing all users.

Posted by: Supremacy Claus | Sep 2, 2013 4:46:36 PM

SC --

Pot is, in the real world, more legal than you suggest, and booze and cigarettes are more illegal.

Q: If you smoke a joint on campus, what's going to happen?

A: Nothing, as we all know.

Q: If you smoke a regular cigarette in the classroom, what's going to happen?

A: Security is going to come in to tell you to stop. If you won't, they'll take you outside. If you resist, they'll call the cops.

You tell me which is really legal and which is really illegal.

Posted by: Bill Otis | Sep 2, 2013 7:10:37 PM

Bill: You are, of course, correct. My question is more personal. Can you oppose the full legalization of marijuana, with ads in magazines, and not support the prohibition of substances 10 times more addictive, and 10,000 more deadly. Can you do so without feeling you are contradicting yourself?

Smoke 50 cigarettes, there is a 50% chance of becoming a lifelong smoker. Smoking kills 400000 Americans a year, 6 million around the world, like a Jewish Holocaust every year, with 10% of the 6 million succumbing to second hand smoke without choice, without their smoking. Half of smokers will die of it.

One cannot overdose on marijuana. Most of the dozens of deaths a year attributable to marijuana are caused by drugged driving. Alcohol causes 10,000 of those. Drugged driving will increase but will never approach the rate of alcohol related crashes.

My view is to oppose the current situation. Either legalize marijuana, tax it, and have the profits go to American tobacco companies, rather than the Taliban or the Mexican cartel. Or, prohibit alcohol and cigarettes, totally, with Draconian measures. The health benefits are worth any Draconian measure. The progressive squeezing of smoking by the means you illustrated has resulted in a drop of smoking rates from a third to a quarter of the population, although females have taken it up, and lung cancer kills more women than breast cancer. The huge drop in death from heart disease is complex, but certainly the lower smoking rate is a factor.

I invite advocates of both sides to join in and become consistent, no longer tolerate the discrepancies. Because prohibition with effective measures has no support among the public, I lean more toward legalization of marijuana.

Posted by: Supremacy Claus | Sep 2, 2013 8:00:15 PM

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