Justice Department Finally Announces its Response to the Legalization of Marijuana in Colorado and Washington

Understandably overshadowed by the debate over a possible US military intervention in Syria is the Justice Department’s long-awaited announcement of its response to the legalization of marijuana in Colorado and Washington. Criminal law experts, legalization advocates, and others have long wanted to know whether and to what extent the DOJ intends to continue federal marijuana prosecutions in those states. Today, it finally took a position on the issue, and put out a fairly detailed memorandum to federal prosecutors outlining its policy. But, as with the DOJ’s recent memorandum on charging low-level drug offenders, there is little real change here. [SEE UPDATE BELOW FOR A DISCUSSION OF WAYS THAT THE ADMINISTRATION COULD HAVE IMPOSED GENUINE CONSTRAINTS ON FEDERAL MARIJUANA PROSECUTIONS].

The main bright spot for legalization advocates is that the federal government won’t be suing to overturn the Colorado and Washington laws in federal court – for now. But they don’t rule out filing such a suit in the future if they conclude that federal interests are threatened. In the meantime, the DOJ memorandum urges federal prosecutors not to prioritize marijuana enforcement in these states so long as they adopt “strong and effective regulatory and enforcement systems” that protect against threats to a long list of “federal priorities” that may be endangered by marijuana legalization. This list is long and vague enough that it would be difficult for any state to fully address it without virtually negating marijuana legalization entirely. For example, it includes “preventing the distribution of marijuana to minors,” which the DOJ defines expansively as “call[ing] for enforcement not just when an individual or entity sells or transfers marijuana to a minor, but also when marijuana trafficking takes place near an area associated with minors when marijuana or marijuana-infused products are are marketed in a manner to appeal to minors; or when marijuana is being diverted, directly or indirectly, and purposefully or otherwise, to minors.” And even this expansive definition is, the DOJ warns, “[b]y way of example only. Among the other federal priorities on the list is “preventing the diversion” of marijuana to states where it is still illegal, preventing violence in the cultivation or distribution of marijuana, and preventing marijuana use on federal property. Realistically, a US attorney could find something on this list to justify virtually any marijuana prosecution he or she might care to bring.

Moreover, the memorandum concludes that “nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.” This is true “[e]ven in jurisdictions with strong and effective regulatory systems.” Even where such systems exist, federal prosecutors can still file marijuana prosecutions when there is “evidence that particular conduct threatens federal priorities.” The memorandum does not tell us what these other “important” federal interests and federal priorities might be. Presumably, US attorneys have broad discretion in determining what they are and whether a marijuana prosecution would serve them. If I were a state-licensed marijuana distributor in Colorado or Washington, I would not find this memorandum especially reassuring.

The memorandum does refer to previous DOJ statements that prosecutors should generally not go after “seriously ill” individuals and their “individual caregivers.” But even this is not a firm rule, and can presumably be overriden in cases where a US Attorney believes “federal priorities” might be advanced by a prosecution. Moreover, a major objective of the legalization of marijuana is to allow legal sale and production of the drug, as well as to allow its possession by caregivers and seriously ill people. Otherwise, we end up with a policy much like alcohol prohibition, which, after all, focused on the sale and distribution of alcohol.

In sum, this memorandum is consistent with the administration’s longstanding unwillingness to seriously reform the federal War on Drugs, even as the President and Attorney General Eric Holder have expressed doubts about the wisdom and justice of current policy.

That said, as I noted in my last post on the administration’s drug policy, public and elite opinion are both becoming more skeptical of the War on Drugs, and its possible that Obama and other politicians will move in the same direction as it becomes more politically advantageous to do so. The President has certainly left open the possibility that his position on this issue might “evolve” over time, just as it did on gay marriage.

UPDATE: Mark Kleiman criticizes me for “express[ing]… skepticism without explaining how he thinks the Justice Department should have reacted in the face of an unrepealed federal criminal statute.” Fair enough. But I take it as pretty obvious that there are many ways the DOJ could have limited prosecutors’ discretion to prosecute marijuana cases in these states more than it did. Following the example of Obama’s immigration policy decision last year, it could have simply announced that it will not prosecute new marijuana cases in Colorado and Washington at all. Alternatively, it could have abjured such prosecutions in cases where the potential defendants comply with state law, or limited prosecutions to cases where the defendants have engaged in particularly egregious conduct, such as violent crimes. No doubt there are many other possible options as well. The existence of “an unrepealed federal criminal statute” does not prevent the executive from exercising prosecutorial discretion, and Obama could have used that discretion to set much tighter constraints on federal marijuana prosecutions than the easily circumvented limits outlined in the DOJ memorandum.

UPDATE #2: In this follow-up post, I address the new memo’s seemingly more favorable treatment of large state-permitted marijuana enterprises. Unfortunately, the change in tone here does not translate into much of a change in policy.