WASHINGTON -- The United States government took a historic step back from its long-running drug war on Thursday, when Attorney General Eric Holder informed the governors of Washington and Colorado that the Department of Justice would allow the states to create a regime that would regulate and implement the ballot initiatives that legalized the use of marijuana for adults.
A Justice Department official said that Holder told the governors in a joint phone call early Thursday afternoon that the department would take a "trust but verify approach" to the state laws. DOJ is reserving its right to file a preemption lawsuit at a later date, since the states' regulation of marijuana is illegal under the Controlled Substances Act.
Deputy Attorney General James Cole also issued a three-and-a-half page memo to U.S. attorneys across the country. "The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health and other law enforcement interests," it reads. "A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice."
The memo also outlines eight priorities for federal prosecutors enforcing marijuana laws. According to the guidance, DOJ will still prosecute individuals or entities to prevent:
- the distribution of marijuana to minors;
- revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
- the diversion of marijuana from states where it is legal under state law in some form to other states;
- state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- violence and the use of firearms in the cultivation and distribution of marijuana
- drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;
- preventing marijuana possession or use on federal property.
The eight high-priority areas leave prosecutors bent on targeting marijuana businesses with a fair amount of leeway, especially the exception for "adverse public health consequences." And prosecutors have shown a willingness to aggressively interpret DOJ guidance in the past, as the many medical marijuana dispensary owners now behind bars can attest.
U.S. Attorneys will individually be responsible for interpreting the guidelines and how they apply to a case they intend to prosecute. A Justice Department official said, for example, that a U.S Attorney could go after marijuana distributors who used cartoon characters in their marketing because that could be interpreted as attempting to distribute marijuana to minors.
But the official stressed that the guidance was not optional, and that prosecutors would no longer be allowed to use the sheer volume of sales or the for-profit status of an operation as triggers for prosecution, though these factors could still affect their prosecutorial decisions.
The Obama administration has struggled with the legalization of medical marijuana in several states. Justice Department Officials had instructed federal prosecutors across the country not to focus federal resources on individuals who were complying with state laws regarding the use of medical marijuana. But the U.S. attorneys in several states that had legalized medical marijuana rebelled, and what was known as the Ogden memo faced stiff resistance from career prosecutors.
"That's just not what they do,” one former Justice official told HuffPost. “They prosecute people."
As a result of the internal pushback at DOJ, a new memo was issued by Deputy Attorney General James Cole in 2011 that gave U.S. attorneys more cover to go after medical marijuana distributors. Federal prosecutors began threatening local government officials with prosecution if they went forward with legislation regulating medical cannabis.
After recreational marijuana initiatives passed in Washington and Colorado in November, President Barack Obama said the federal government had “bigger fish to fry” and would not make going after marijuana users a priority.
Holder said back in December that the federal response to the passage of the state ballot measures would be coming “relatively soon.”
Washington Attorney General Bob Ferguson told HuffPost his office was preparing for the “worst-case scenario” of a federal lawsuit against the law.
UPDATE: 6:15 p.m. -- Senate Judiciary Committee Chairman Pat Leahy (D-Vt.), who'd been pressing Holder to make a decision and respect the will of the states' voters, applauded the move, saying in a statement that "the Justice Department should focus on countering and prosecuting violent crime, while respecting the will of the states whose people have voted to legalize small amounts of marijuana for personal and medical use." He had previously scheduled a hearing on the issue for Sept. 10.
At issue will be how the U.S. Attorneys will implement the directive. John Walsh, the lead prosecutor for the District of Colorado, has previously aggressively interpreted guidance from Justice higher-ups and targeted medical marijuana dispensaries that were not accused of breaking any state laws, like those that were operating near schools. His reaction Thursday to Holder's announcement might not give Colorado business owners much confidence that he intends to modify his approach.
"Of particular concern to the U.S. Attorney’s Office are cases involving marijuana trafficking directly or indirectly to children and young people; trafficking that involves violence or other federal criminal activity; trafficking conducted or financed by street gangs and drug cartels; cultivation of marijuana on Colorado’s extensive state and federal public lands; and trafficking across state and international lines," Walsh said. "In addition, because the Department of Justice’s guidance emphasizes the central importance of strong and effective state marijuana regulatory systems, the U.S. Attorney’s Office will continue to focus on whether Colorado’s system, when it is implemented, has the resources and tools necessary to protect those key federal public safety interests. To accomplish these goals, we look forward to closely working with our federal, state and local partners."
Via Huffington Post
Inslee encouraged by marijuana talk with Attorney General Holder
By Bob Young
Seattle Times staff reporter
Gov. Jay Inslee said his conversation Tuesday with U.S. Attorney General Eric Holder convinced him Washington state should continue making rules for a legal marijuana industry as mandated by voter-approved Initiative 502.
Inslee and state Attorney General Bob Ferguson met with Holder because of the conflict between federal law, which bans all marijuana, and the state’s law, which makes possession of an ounce of pot legal for those 21 and older.
Inslee said the 45-minute conversation was “very satisfying” and a “confidence-builder” about the state’s ability to move forward implementing legal marijuana. “We went in thinking we should continue with rule-making and nothing I heard should dissuade us,” Inslee said.
At the same time, he stressed that Holder said nothing about the federal government’s intentions and whether it would crack down on Washington state or look the other way.
Inslee said he did not press Holder for a clearer signal, or position, because he considered their talk a preliminary meeting, with more discussions to follow.
Noting that the state is moving ahead with rule-making, Ferguson said he emphasized that the state would like answers soon. “We made it very clear that while we’re moving forward, some deadlines are coming up soon. I think Attorney General Holder understood that we’d need guidance in months to come,” Ferguson said.
Inslee said several times the state would provide Holder with details about how it would prevent its legal marijuana from leaking into other states.
“We spent some time talking about how the initiative would work, how the regulatory process would work. He listened with great interest, and I appreciated that,” Inslee said.
The law will be implemented by the state’s Liquor Control Board, which on Tuesday held the first of six meetings planned to take public comment about the law. The second meeting will be at 7 p.m. Thursday at Seattle City Hall.
The governor added that Holder’s questions show he is “going to be fully attentive” to Washington’s evolving law. Inslee said it’s no surprise that Holder would take his time to fully evaluate the implementation of I-502.
In case the federal government decides to oppose the law, Ferguson has a team of lawyers in his office preparing to make the best legal case for upholding I-502.
“I said we want to avoid a legal fight,” Ferguson recounted during a news conference after the meeting with Holder. “We want to find a pathway forward. But if it comes to it, the Washington Attorney General’s Office will be prepared for a legal fight.”
President Obama has said recreational pot smoking in Colorado and Washington, the two states that have legalized it, is not a major concern for his administration.
“We’ve got bigger fish to fry,” Obama said in an interview with ABC News last month. “It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal.”
Meanwhile, the U.S. Court of Appeals for the Washington, D.C., circuit ruled Tuesday that medical marijuana should not be reclassified from its status as a federal Schedule I dangerous drug with no medical value.
In a 2-1 decision, the appeals court agreed with the government’s contention that adequate and well-controlled studies on marijuana’s medical qualities do not exist.
Advocates disagree and vowed to appeal the decision to the U.S. Supreme Court