More than six months after Washington and Colorado passed ballot initiatives to legalize and regulate recreational marijuana, U.S. Attorney General Eric Holder said today he would not sue to block the implementation of the laws — at least not until he sees how the laws operate in effect.
This announcement came as little surprise, after reports from earlier communication between DOJ and the governor. More significantly, the Department of Justice also issued new guidance to prosecutors today calling for scaled back prosecution not just of users of marijuana, but also of distributors and growers complying with state law:
[T]he previous guidance drew a distinction between the serious ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. In drawing this distinction, the Department relied on the common-sense judgment that the size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal enforcement priorities set forth above.
As explained above, however, both the existence of a strong and effective state regulatory system and an operation’s compliance with such a system, may allay the threat that an operations’s size poses to federal enforcement interests. Accordingly, in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities listed above. Rather, prosecutors should continue to review marijuana cases and on a case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective regulatory system.
As the memo points out, this is a change from DOJ’s previous position. When asked just last week about the administration’s position on marijuana, Deputy Press Secretary Josh Earnest said, “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.” Now, we can add state-compliant growers and distributors to that list who are not otherwise violating the federal government’s rules. This would ostensibly mean that prosecutors would no longer go after large medical marijuana dispensaries that have been viewed as models for state compliance, as they have on several previous occasions.
The memo lays out eight areas of priority for marijuana prosecutions, almost all of which would ostensibly mean the targets were violating state marijuana law anyway, at least those recreational laws in Washington and Colorado. Factors that would entice prosecution include distributing or marketing to minors, funneling revenue to a criminal enterprise, trafficking marijuana to other states without the same laws, and the use or growth of marijuana on public lands.
The one factor that leaves more room for DOJ discretion is one to prevent “drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use.” Some marijuana advocates worry that this factor, as well as the general nature of other factors, still gives prosecutors broad discretion to prosecute state-compliant actors. “The guidelines seem to leave some leeway for the feds to continue making it hard for state-legal marijuana providers to do business,” said Tom Angell of the Marijuana Majority. Overall, he said, today’s announcement is a “step in the right direction.”
Attorney General Eric Holder informed Washington and Colorado’s governors of the policy today, even as both states have already made significant progress toward implementing their laws. After the laws went into the effect at the beginning of the year, possession of less than an ounce of marijuana was no longer a crime in either state, but neither state yet has legal dispensaries for distributing the substance. The states have been working toward developing regulations for licensing and overseeing dispensaries and growers. Once these are complete, the states’ vision of creating a legal, non-violent mechanism for marijuana commerce will go into effect.
Today’s announcement will not eliminate the host of legal obstacles faced by medical marijuana dispensaries illegal under federal law. That would require passage of one of several bills in Congress to scale back federal prohibition. Nor will it instill initial confidence that state-compliant dispensaries will be immune to prosecution. But it conveys a message that the federal government is ready and willing to back down from its previous stand-off with many of the 20 states that have already had medical marijuana laws, and take a more measured approach as two of those states blaze a trail on alternatives to the failed War on Drugs.