Obama Doesn’t Have To Change The Law To Change Marijuana Policy


marijuana_ridealong_rectIn the most recent comments from the White House on marijuana, Deputy Press Secretary Josh Earnest said Wednesday that President Obama “does not, at this point, advocate a change in the law” that classifies marijuana as more harmful than cocaine and methamphetamine.

Answering a question from CNN’s Jessica Yellin during a press briefing, he rejected suggestions that Obama should reconsider reclassifying the drug, reciting what appeared to be a prepared statement on the administration’s law enforcement policy:

The administration’s position on this has been clear and consistent for some time now. While the prosecution of drug traffickers remains an important priority, the president and the administration believe that targeting individual marijuana users, especially those with serious illnesses and their caregivers, is not the best allocation of federal law enforcement resources.

While Earnest is right that individual medical marijuana users have not been the target of federal crackdowns, he leaves out other players in the state-regulated medical marijuana industry that has been a target: growers and distributors. Dispensaries and regulated farms not only provide a state-compliant, regulated supply for medical marijuana for those individual users. They also are positioned to ensure the safety of their supply, and to develop and identify particular strains that will meet particular, disparate medical needs. And while neither Earnest’s statement Wednesday nor Obama’s 20/20 comments last year mention these dispensaries, they have been subjects of vigorous federal crackdowns, even when (and possibly because) they are models for state compliance and best practices.

If President Obama believes those crackdowns are unjust or even a poor use of federal resources, he doesn’t have to advocate for a change in the law to have an immediate impact on policy. All he would have to do is change the administration’s approach to prosecution. Attorney General Eric Holder demonstrated just how this could work when he announced last week a change to another law enforcement policy. Mandatory minimum laws and other harsh sentencing regimes for low-level drug offenders, like marijuana prohibition, are in place primarily by act of Congress. But Holder pronounced a commitment to reduce overly harsh sentences through a number of law enforcement policies, the most prominent of which is not seeking mandatory minimum sentences for particular low-level drug offenders.

Holder can do that, through a hallmark of the American justice system known as prosecutorial discretion, the principle that prosecutors have the power to decide how best to allocate their limited resources such that it achieves more justice than injustice. In other words, prosecutors are not expected to crack down on every instance of a technical legal violation. They decide who is targeted and who is not. And so far, some prosecutors under the purview of the Obama administration have decided that major, state-compliant dispensaries should be the subjects of crackdowns.

Even if Holder were to announce a blanket policy to not prosecute suppliers and growers, as they have not to prosecute state-compliant users, such a policy would not be a panacea. To foster development of the state marijuana market without the cloud of potential prosecution, Congress would have to amend the Controlled Substances Act, as several bipartisan bills have proposed to do. What’s more, CNN’s question to Earnest Wednesday was focused on a particular element of federal marijuana law: its classification by the Drug Enforcement Administration as a Schedule 1 dangerous substance with no currently accepted medical value. This classification has major repercussions outside of federal prosecution, some of which were highlighted by Gupta in his recent op-ed and documentary. It makes access to a legal supply of marijuana for medical research exceedingly difficult, it chokes potential sources of federal funding, and it means that pharmacies cannot fill pot prescriptions.

In Wednesday’s response, Earnest did not address these issues. But his answer instead revealed that the Obama administration may continue to pursue selective prosecution of state-compliant marijuana distributors for the foreseeable future, in spite of statements by Holder in December and February that he would announce a DOJ policy on marijuana “relatively soon.”