Federal Arrests of Pot Smokers Are Not the Real Threat to Legalization in Colorado and Washington

The letter that Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has sent to drug czar Gil Kerlikowske regarding marijuana legalization in Colorado and Washington, noted earlier today by Mike Riggs, is encouraging insofar as it indicates that a prominent senator of the president's party is concerned about possible federal interference with implementation of the new laws. But the one legislative solution that Leahy suggests—amending the Controlled Substances Act (CSA) "to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law"—does not make much sense as a way of ensuring these states can set their own policies in this area. That's because the federal government, which accounts for less than 1 percent of the country's marijuana arrests, almost never handles cases involving such small quantities and does not have the resources to do so in any significant way. The real question is not whether the DEA will start busting newly legal pot smokers (even those who grow their own, as permitted in Colorado) but whether it will raid, close down, and prosecute state-licensed commercial growers and retailers.

Leahy, who says he plans to hold a hearing on the federal response to the Colorado and Washington initiatives next year, does not ask Kerlikowske about the fate of cannabis entrepreneurs, although he does ask, "What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?" Such prosecutions seem unlikely for political as well as legal reasons. It is hard to believe President Obama wants to provoke the sort of confrontation with state officials that would occur if the feds started arresting employees of the Washington State Liquor Control Board or the Colorado Department of Revenue, the agencies charged with licensing and regulating pot shops in those states. Even if he did, what exactly would the charge be? Neither legalization initiative requires state officials to handle marijuana, let alone grow or distribute it; they are merely expected to certify when businesses have met the requirements to avoid prosecution under state law.

In his new Cato Institute paper about federalism and marijuana policy, Vanderbilt University law professor Robert Mikos concludes that performing this function does not in any way violate the CSA. The same issue came up in the litigation over Arizona's medical marijuana initiative. Although Gov. Jan Brewer explained her reluctance to implement the will of the voters by citing the alleged legal threat to state regulators, she never suggested a plausible basis for prosecuting them, while the Justice Department (via Arizona's U.S. attorney) disavowed any intent to do so. Around the same time, New Jersey Gov. Chris Christie, a former U.S, attorney, considered the risk that state officials could be prosecuted for implementing that state's medical marijuana law and deemed it acceptable. (New Jersey's first medical marijuana dispensary opened last week.) Oddly, Leahy does not mention the more plausible possibility of a DOJ lawsuit aimed at blocking state-licensed production and distribution, which could tie things up in the courts for quite some time, even if it ultimately fails (as it should).

In short, I am glad Leahy wrote the letter, but I wish he had zeroed in more precisely on the most important threats to state autonomy vis-à-vis marijuana. Ethan Nadelmann, executive director of the Drug Policy Alliance, has a similar reaction:

[Leahy's letter] is striking, first and foremost, because members of the U.S. Senate have been remarkably quiet on issues of marijuana policy in recent years. The 36 Senators representing the 18 states where marijuana has been legalized for medical purposes have taken little initiative to defend patients and others involved in medical marijuana from federal attacks. Senator Leahy's intervention, as chairman of the Senate Judiciary Committee, is thus all the more welcome insofar as it suggests that Senate leadership is now willing to address the issue with public hearings and letters to the White House.

The Senator's suggestion that the Federal Controlled Substances Act be amended  to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is now legal under state law, represents a modest but significant proposal—modest because federal (as opposed to local) law enforcement authorities rarely arrest and prosecute Americans for possessing such small amounts, but significant in that it proposes new federal legislation to accommodate legalization innovations by the states….

The ballot initiatives in Washington and Colorado made history not so much because they legalized possession of small amounts of marijuana but because they mandated that the state governments regulate and tax what had previously been illicit markets.