This post is an update to my previous articles where I discuss the
inherent legal issues between states such as Colorado and Washington that allow
the use and sale of marijuana for recreational and medicinal use, versus the
Department of Justice’s stance that drugs, such as marijuana, are classified as
an illegal drug—and subject to prosecution under current federal law. While
readers may imply that I am pro-this or pro-that, this is not the case. The truth
is that the strange way that the federal government and the states are
cooperating to effectively ignore federal drug laws is simply a story that is
too tempting for me to resist.
It was just a matter of time that either the Department of Justice would
be compelled to sue all of the states that allow for the sale of marijuana for
breaking federal law or adapt its policy concerning the recreational and
medical use of marijuana. There are 20 states, plus the District of Columbia
The Department of Justice decided not to cross the line in the sand and
has now opted for the latter position.
Last Thursday, on August 29, 2013, the United States Attorney General,
Eric Holder, spoke with the Governors of both Colorado
and Washington District of Columbia
The new federal guidelines do not
change marijuana's classification as an illegal drug according to federal law;
however, it discourages the pursuit of individual non-violent marijuana
users who have no links to criminal gangs or cartel operations.
The bottom line of the federal
government’s position is as follows:
"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 government resources,'' White House spokesman Josh
Earnest said last Wednesday.
President Barack Obama said after the two Western states
legalized recreational pot use that his administration did not view the
prosecution of users in those states as “a top priority.” "We've got
bigger fish to fry," Obama said last year. "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."
The new federal guidelines contain a
list of eight new federal enforcement priorities, which is expected to guide
federal authorities when weighing decisions on marijuana prosecutions. It also
notifies state authorities that the federal government reserves the right to
intervene if the states do not enact appropriate regulations to protect federal
interests, including guarding against the distribution of marijuana to minors.
According to the new directive, federal authorities still will
prosecute individuals or entities involved in:
·
The
distribution of marijuana to minors.
·
Directing
revenue from marijuana sales to gangs and cartels.
·
Diverting
marijuana from states where it is legal to other states where there are no laws
allowing for marijuana use.
·
Using
legal sales as cover for trafficking operations.
·
Using
violence and or firearms in marijuana cultivation and distribution.
·
Driving
under the influence of marijuana.
·
Growing
marijuana on public lands.
·
Possessing
marijuana or using on federal property.
Not surprisingly, there are those who are angrily
opposed to the Department
of Justice’s new stance.
"We are very disappointed that Eric Holder's not doing his
job,'' said Calvina Fay, executive director of the Drug Free America
Foundation."It is his job to enforce our nation's laws.
"He has created what will become a tsunami that will most
likely result in far too many young people becoming victims of chemical
slavery,'' she said. "And it's really unforgivable. … He should be
fired."
Peter Bensinger, former administrator of the Drug Enforcement
Administration, said Holder's action amounted to a violation of the law.
"He's not just abandoning the law,'' Bensinger said,
"he's breaking the law...He's putting the people of Washington
and Colorado
“This sends the wrong message,” says former Representative Patrick
J. Kennedy--who is a recovering prescription drug addict---and a founder of
Smart Approaches to Marijuana, a policy group. “Are we going to send up the
white flag altogether and surrender and say ‘have at it’? Or are we going to
try to reduce the availability and accessibility of drugs and alcohol? That
should be our mission.”
Others applaud the Department of
Justice’s new stance and indicate that it is long overdue to stop punishing and
expending vast amounts of legal, prison overcrowding, monetary, and law
enforcement resources prosecuting non-violent small quantity recreational
users, as well as those who use marijuana for such ailments as chronic pain. Simply put, federal law enforcement is more
concerned with those criminals who commit terrorist attacks, murders,
shootings, kidnappings, and other violent crimes. The old hippy who smokes a joint in the
backyard, or the cancer patient who smokes to lessen chronic pain, are simply
not public enemy number one anymore.
Senate Judiciary Committee Chairman
Patrick Leahy, D-Vt., said he "welcomed'' the guidance that has been
"long-awaited and in short supply.''
"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,'' Leahy said.
"We received good news this
morning when Attorney General Eric Holder told the governor the federal
government would not pre-empt Washington and Colorado as the states implement a
highly regulated legalized market for marijuana," Washington Gov. Jay
Inslee and Attorney General Bob Ferguson said in a statement.
“It’s a relief,” said Representative
Jared Polis, a Colorado Democrat. “It’ll get the criminal element out of the
marijuana trade. It’ll provide legitimate business opportunities for everything
from farmers to processors to retail store owners.”
"In
my lifetime, it was by far the most important change in marijuana federal
policy on the federal level," said Keith Stroup, founder and legal counsel
at the non-profit National Organization for the Reform of Marijuana Laws
(NORML)."All of sudden, they have decided to let the states experiment
with different levels of legalization. That's precisely what happened at the
end of alcohol prohibition."
As with all new policies, there are always
questions that remain, such as:
How are medical and recreational
marijuana businesses going to get loans for their business or deposit money in
banks earned from sales? The announcement by the Attorney General concerning
not prosecuting recreational users and medical users does not address the financial
hurdles facing marijuana dispensaries and growing operations----like their
access to business loans, keeping bank accounts from the proceeds of sales, and
other banking services.
Banks are reluctant to do business with
marijuana growers and sellers, based on the obvious fear of violating federal
laws. The uncertainty due to the strict
regulations of federal bank lending laws, the interpretation of tax laws, and
the ability of marijuana dispensaries to operate their business is no doubt going
to lead to further prosecutions concerning how “marijuana money” will flow
through the federal banking and IRS systems, especially since federal law still
officially classifies marijuana as an illegal drug. This again is a legal contradiction between
federal laws and state laws that is sure to create a whole new set of disputes about
the regulation of funds related to the selling of marijuana.
Perhaps the most significant future
issue likely to come very soon, is that the Department of Justice has reserved
the right to intervene
if the states do not enact appropriate regulations to protect federal
interests, including guarding against the distribution of marijuana to minors. What exactly an “appropriate regulation” is
has not been defined by the Department of Justice. U.S. Attorneys will
individually be responsible for interpreting the federal guidelines and how
they apply to a case they intend to prosecute. Prosecutors generally are inclined to put
people in prison if given the option. This means that there could still be many
prosecutions carried out by aggressive U.S. Attorneys who interpret cases it
determines are not protected by the Department of Justice’s guidelines.
What we now know for sure is that the
general public’s votes to regulate their own marijuana state laws have had a
strong impact on the federal government because it is now actively and openly
finding a way to “work around” current federal drug laws.
~Leonardo G. Renaud
