Federal prosecutors will crack down on recreational marijuana dispensaries and growers even in states where they are legal, U.S. drug czar Gil Kerlikowske told a Canadian news magazine this week. The statement appears to be the first from a federal official to state explicitly that the federal government will prosecute dispensaries and producers once they are licensed in Washington and Colorado. During an interview on 20/20, President Obama told Barbara Walters only that the federal government has “bigger fish to fry” than going after recreational users, but did not address those who produce or distribute marijuana. MacLean’s reports:
Q: In the November elections, two states — Washington and Colorado — voted to legalize marijuana for recreational use. President Obama has said that the U.S. government has “bigger fish to fry” than to go after recreational users in states where it is legal. Where do things stand with regard to producers and distributors of marijuana, which is still illegal under federal law?
A: You’ll continue to see enforcement against distributors and large-scale growers as the Justice Department has outlined. They will use their limited resources on those groups and not on going after individual users.
While the questioner rightly points out that distribution and production of marijuana are illegal under federal law (as is possession), Washington and Colorado’s laws do explicitly make both production and distribution of marijuana legal under state law if the entities are licensed and follow regulations.
In states where medical marijuana is legal, federal prosecutors and Drug Enforcement Administration agents have ratcheted up crackdowns of those distributing medical marijuana in seeming compliance with state laws. And Kerlikowske’s statement suggests the federal government will take the same approach to the recreational marijuana laws, in spite of growing public support for state marijuana legalization in the wake of the November election.
Neither Attorney General Eric Holder, nor other representatives from the DOJ or DEA have spoken publicly about their planned approach, other than to issue a statement immediately following the ballot initiatives’ passage saying that enforcement of federal law “remains unchanged.”
The threat of not only shutdown, but harsh federal mandatory minimum jail sentences of ten years just for marijuana distribution — and as high as 85 years if other associated charges are lobbed on — would no doubt have a chilling effect on the recreational marijuana industry, and thwart state efforts to experiment with new approaches to achieving public health and safety goals in the wake of the failed War on Drugs. It remains to be seen, however, whether federal agents would make significant use of their prosecutorial discretion, or merely retain the right to prosecute in very limited circumstances.
The best way to eliminate this threat would be to amend the federal Controlled Substances Act, which the executive branch remains responsible for enforcing. Members of Congress proposed bills last week to regulate and tax marijuana like alcohol in those states where it is legal. Last session, other bills proposed simply exempting those states with marijuana laws from the Controlled Substances Act, and Senate Judiciary Chairman Patrick Leahy (D-VT) said he was open to decriminalizing marijuana. But given congressional inaction on absolutely everything, it will likely fall to prosecutors to decide how the law gets applied.
Dominic Holden of the Stranger claims that Kerlikowske’s comments do not indicate that the administration will crack down on recreational marijuana dispensaries, but rather that the DOJ will continue its current policy to “prioritize charging people breaking state marijuana laws.” This, however, is not an accurate reflection of Obama Administration policy, nor of their past actions with regard to medical marijuana dispensaries. In the 2011 “Cole Memorandum” the Department of Justice stated that “commercial operations cultivating, selling or distributing marijuana” will remain subject to prosecution — even though individuals users would not be if they comply with state law. Kerlikowske’s statement that DOJ would “use their limited resources on those groups and not on going after individual users” is a restatement of the Cole Memo’s position, and suggests that the Cole framework will be applied to recreational users as it has been applied to medical marijuana users. It remains to be seen whether Kerlikowske is speaking for the DOJ and/or the administration.