Yesterday, the Department of Justice finally announced how it was going to deal with the fact that voters in Colorado and Washington passed initiatives legalizing marijuana for recreational use, and the result is surprisingly reasonable. In case you haven't been following this issue, those who'd like to see more enlightened policies on marijuana, which is currently classified as a Schedule 1 drug supposedly as dangerous as heroin or cocaine, have been terribly disappointed in the Obama administration. Could this be a real meaningful change?
Despite early suggestions that they wouldn't waste time and resources going after marijuana and a 2009 Justice Department memo instructing U.S. Attorneys to make it a low priority, the war on pot has continued unabated in the Obama years. As Ryan Grim and Ryan Reilly described it earlier this year, "Since the memo, the Department of Justice has cracked down hard on medical marijuana, raiding hundreds of dispensaries, while the IRS and other federal law enforcement officials have gone after banks and landlords who do business with them. Four years after promising not to make medical marijuana a priority, the government continues to target it aggressively." It turned out that whatever the President thought, U.S. attorneys still considered marijuana to be a demon weed and were going to do everything in their power to go after all who would promote or even tolerate it, even threatening to prosecute public officials as co-conspirators if they allowed it in their municipalities.
So now they're giving it another try. According to the new directive, Justice isn't going to be suing to get the initiatives struck down, and they'll only be going after people working within Colorado and Washington's new marijuana system if they fall under one of eight categories of malfeasance. These include selling to minors, having connections to gangs or cartels, selling marijuana out of state, trafficking in other illegal drugs, and so on.
Sounds like Colorado and Washington are now free to build up their new systems, and people wanting to get into the business can do so without fear of a federal raid, right? Maybe not.
As Mark Kleiman cautions, this memo isn't a legal defense for someone who gets arrested, and it can be reversed at any time—say, when the next Republican president takes office. The real problem is that this new policy letter still leaves U.S. Attorneys with the discretion to prosecute whoever they wish, and given the record of the last four years, some of them might well respond by not deciding to change anything they're doing. One of the eight enforcement priorities the letter lists is "Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use," and it isn't hard to imagine a zealous U.S. Attorney saying that a legal marijuana operation is endangering public health and therefore can be prosecuted.
The more optimistic way to look at the new policy is that it's a major step forward because it gives the two states and everyone who works within their marijuana industries clear guidance about what they can do not to rouse the Justice Department's ire. It also offers an incentive to work hard to make sure there are as few violations of those eight principles as possible. If the two states create a clear and strict regulatory regime that makes it hard to create gray-market operations circling around the legitimate ones, that will make it less likely that the U.S. attorneys will get perturbed and start issuing subpoenas.
Because the future depends as much on the decisions people within the government make as on written policies, there's still a lot of uncertainty. As Grim and Reilly explained well in the article I mentioned, there are plenty of factions within the federal government's sprawling law enforcement apparatus whose thirst to bust dope-smoking hippies is undiminished, whether the President thinks they should ease off and whether the public supports legalization or not. That's why a much better solution would have been the one Kleiman has proposed: not just a letter offering "guidance" to U.S. attorneys, but a formal agreement between the attorney general and the two states, under which the federal government would promise not to prosecute those complying with state law, in exchange for the states' help in stopping the interstate marijuana trade.
Maybe we'll see that eventually. Or maybe as more states pass legalization initiatives (there are likely to be more on ballots in 2014 and 2016), momentum will build to change federal law. But that could be some time in coming.