Justice Department Gives Yellow Light to Marijuana Legalization

Today, nearly 10 months after voters in Colorado and Washington decided to legalize marijuana, the Justice Department finally responded with a policy statement that promises prosecutorial restraint as long as both states create "a tightly regulated market" with rules that address federal "enforcement priorities" such as preventing interstate smuggling, diversion to minors, and "adverse public health consequences." If Colorado and Washington fail to adequately address federal concerns, says Deputy Attorney General James Cole in a memo to U.S. attorneys, the Justice Department may yet decide to prosecute marijuana growers and sellers who comply with those states' laws or challenge the laws themselves in federal court. But in a partial reversal of a policy he announced in a 2011 memo, Cole says the size or commercial nature of a marijuana operation will not by itself trigger federal prosecution.

The deal that Cole outlines is entirely discretionary and can be changed by the Justice Department at any time. But he strongly suggests that Colorado and Washington can avoid federal interference with their momentous experiments in pharmacological tolerance if their regulations and enforcement are strict enough:

The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests. A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice. Jurisdictions that have implemented systems that provide for regulation of marijuana activity must provide the necessary resources and demonstrate the willingness to enforce their laws andregulations in a manner that ensures they do not undermine federal enforcement priorities.

In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities set forth above. Indeed, a robust system may affirmatively address those priorities by, for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for. In those circumstances, consistent with the traditional allocation of federal-state efforts in this area, enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity. If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.

There is plenty of wiggle room there for the Justice Department, which can decide at any point that "state enforcement efforts are not sufficiently robust" and move to shut down state-licensed growers and retailers. The experience with medical marijuana, where promises of forbearance led to a "green rush" of cannabusinesses that prompted a crackdown, suggests no one should get too excited about the Obama administration's willingness to tolerate deviations from prohibitionist orthodoxy. Furthermore, no matter how intrusive the Justice Department turns out to be in practice, all bets are off in the next administration. Still, this wishy-washy yellow light for legalization is better than might have been expected based on Obama's broken promises regarding medical marijuana.

Cole has been invited to testify at a September 10 hearing before the Senate Judiciary Committee focusing on conflicts between state and federal marijuana laws. Perhaps we will get a clearer sense then of how respectful of state policy choices the Justice Department is apt to be.

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  • Fist of Etiquette||

    The deal that Cole outlines is entirely discretionary and can be changed by the Justice Department at any time.

    The very best kind of federal restriction is one that is set on a whim.

  • sarcasmic||

    Rule of law sucks. Treating everyone equally and actually following what the rules say is no fun.

    Discretion is where it's at. Make everything arbitrary and rule of law goes out the window! Power! Fuck yeah!

  • The Rt. Hon. Serious Man, Visc||

    What Obama giveth, Obama taketh away. It's good to be the King.

  • Rights-Minimalist Autocrat||

    a policy statement that promises prosecutorial restraint as long as both states create "a tightly regulated market" with rules that address federal "enforcement priorities" such as preventing interstate smuggling, diversion to minors, and "adverse public health consequences." If Colorado and Washington fail to adequately address federal concerns, says Deputy Attorney General James Cole in a memo to U.S. attorneys, the Justice Department may yet decide to prosecute marijuana growers and sellers who comply with those states' laws or challenge the laws themselves in federal court.

    AKA FYTW.

  • ||

    One is the loneliest number that you'll ever do...

  • kinnath||

    Two can be as bad as one.

  • ||

    The deal that Cole outlines is entirely discretionary and can be changed by the Justice Department at any time.

    Of course it is. Just like this administration likes it. It commits to nothing, thereby increasing its power to do whatever it wants.

    What. A. Surprise.

  • Fist of Etiquette||

    WHY DO YOU PEOPLE TRY TO POST A COMMENT AT 3PM EDT? Don't you know that's during reason's Red Hour?

  • ||

    I double posted because I wanted to. I only double post when I want to. I'm in control here!

  • Fist of Etiquette||

    You must be from the valley.

  • Pro Libertate||

    I dunno, I don't think he's of the Body.

  • Fist of Etiquette||

    If I were you, I'd start looking for another job.

  • Pro Libertate||

    [Points hollow tube at Fist.]

  • ||

    The deal that Cole outlines is entirely discretionary and can be changed by the Justice Department at any time.

    Of course it is. Just like this administration likes it. It commits to nothing, thereby increasing its power to do whatever it wants.

    What. A. Surprise.

  • Pro Libertate||

    Yes, wonder what litmus test they'll use when exercising this discretion?

    Better break out the disposition matrix.

  • Fist of Etiquette||

    Campaign donations. Connectedness.

  • Acosmist||

    Yellow light, huh? That thing that sometimes cops will pull you over for "running" even though it's not a red light.

    So, yes, this analogy seems perfect.

  • Jose Chung||

    Arbitrary and capricious... the Obama administrations favorite flavors.

  • Paul.||

    Justice Departments Gives Yellow Light to Marijuana Legalization

    Uhm, Jacob, you do realize that you get a Yellow light right before it goes red?

  • Zeb||

    Maybe it's a blinking yellow light.

  • Robert||

    Anybody here remember when most traffic lights didn't have yellow, and when those that did changed to yellow on the way to both red & green?

  • General Butt Naked||

    Anyone else think that Holder (PBUH) looks like a sloth?

  • Paul.||

    A sloth that looks exactly like Steadman, yes.

  • NeonCat||

    How dare you insult sloths like that!

  • Emmerson Biggins||

    Gotta say, that is a great headline.

  • ||

    Cole has been invited to testify at a September 10 hearing

    Hearings on Sept 11 being reserved for true Americans.

  • Brandon||

    Does everyone in the Justice Department have to have a pedo-stache now?

  • Carnival||

    This is a pathetic step forward.

    We spend all of our time focusing on cannabis, but there are bunches of other, nonaddictive drugs out there that also have obvious medical use. I'm doing my research work in the field of psychopharmacology and I would love to be able to explore psilocybin as a possible treatment for depression, but I can't because it has "no accepted medical value."

    Bastards.

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