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.

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  • Almanian.||

    The letter that Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has sent...is encouraging

    I'm just not getting there. I can get to "less discouraging than otherwise." That'll work.

    Carry on.

  • Almanian.||

    OH! Also SO glad the the Senator from VT is so interested in the effect of the feds on local affairs of CO and WA cause...Commerce...Clause? Or something?

    How 'bout everyone sticks to their knitting.

    Oh - way too late, right. GENERAL WELFARE!!!

  • Hyperion||

    So what are the feds waiting on? Is Obama just using his 'I'm so cool' routine to impress his sheep before he goes all Stalin like on WA and CO?

  • ||

    I'm sure they're first trying to come up with some legal (as in "use the law as a cudgel") ways to stop it first.

  • Hyperion||

    If by legal you mean 'whatever the fuck we can get away with', then yeah, that's probably pretty accurate guess.

  • Hugh Akston||

    The laws don't go into effect until the new year. Once you see retailers open their doors, the DEA goons won't be far away.

  • sloopyinca||

    The WA law is already in effect. And IIRC, the CO law is in effect but the state has a year to come up with a tax/regulatory scheme. I may be wrong, but PoliceOne was already hand-wringing and laughing about a crime committed on day 1 of legalization.

  • Fist of Etiquette||

    ...while the Justice Department (via Arizona's U.S. attorney) disavowed any intent to do so.

    I fail to understand why it's an apparent given that this would be a bridge too far for federal prosecutors. And are the senators and representatives from the two actual states in question chiming in with some sort of legislative remedy (or whatever) for the uncertainty from the administration? Are they included in the 36 do-nothing senators mentioned in the article?

  • Paul.||

    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.

    Just because she's lying naked in bed next to you, doesn't mean you're getting laid.

  • SKR||

    unless you're married, it usually does.

  • Paul.||

    You've obviously never been married...

  • Paul.||

    I re-read your comment. Yeah, no it doesn't, unless you've had the remarkable fortune to have never been confronted with the crazy.

  • Hyperion||

    On the other hand, there is one way in which I can see the feds standing down on this, sort of.

    It is painful to think in this way because it's so hard for most people to accept that there are actually human beings who can think in such dispicable ways. But I can imagine the following screnario of Obama on the phone with the governor of WA:

    Obama: Hey dude, this is the prez, you know, the coolest and bestest prez of all time. You are honored and humbled by this call, right?

    The Gov: Hello, Mr. President, of course I am honored. What can I do for you?

    Obama: Well, you know that, uhh, thing you passed out there, that marijuana thing, uhh, you know?

    The Gov: Yes.

    Obama: Well, uhh, we could really cause some problems for you, but uhh, well, I thought maybe we can work out a deal.

    The Gov: Ok, I'm listening:

    Obama. Well, you see, uhh, I have this cousin out there in Seatlle and he has this company that manufactures testing devices, and I have this friend, that uhhh, he's looking to open a drug treatment center... uhh, you getting my drift?

  • Hyperion||

    There is one other, just as dispicable scenario I can imagine, where this don't go down, and you never see Dunphy post here again.

    Out of the blue, WA state police get an obscenely huge pile of cash from the feds, and the pet population of WA suddenly takes a nose dive...

  • Hyperion||

    When I said don't go down there, I meant, the feds don't stand down.

  • sloopyinca||

    What are the odds that they go after these people via the IRS? Shit worked for Capone.

  • Hyperion||

    I guess the IRS better buy more ammo. Only instead of shotgun shells, they will need something more appropriate for shooting puppies.

  • sloopyinca||

    I guess the IRS better buy more ammo.

    Pretty sure they already have.

  • ||

    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"...

    ...is actually an interesting idea from a Tenth Amendment perspective. What if federal statutes acknowledge state nullification as a right, and embed procedures by which states can opt out of a federal law?

  • ||

    What if federal statutes acknowledge state nullification as a right

    What happened in WA and CO wasn't nullification of federal laws, it was just repeal of state prohibitionist laws.

    Nullification would be "if any fed agents bust any MJ grower, seller, or smoker on non-federal land, we arrest the agents involved."

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    Those dudes seem to know what the plan is. Wow.

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