Obama on Marijuana Legalization: If Not Now, When?


President Obama's recent comments about marijuana legalization, noted this morning by Mike Riggs, hit a familiar theme: Going after newly legal recreational users in Colorado and Washington, he said, is not a good use of the federal government's scarce resources. He and his underlings have repeatedly said the same thing about medical marijuana users. But going after pot smokers has never been a "top priority"—or any priority at all—for the Drug Enforcement Administration, which eschews cases involving small amounts of marijuana. Those are handled by state and local police, who account for 99 percent of marijuana arrests. So leaving individual users alone does not suggest that Obama is any more enlightened, compassionate, tolerant, or rational than his predecessors. The new aspect of the policy announced by Obama and Attorney General Eric Holder with respect to medical marijuana was that they promised prosecutorial forbearance not only for patients but also for their suppliers, provided they complied with state law. Obama has conspicuously failed to deliver on that promise, cracking down on medical marijuana dispensaries more aggressively than George W. Bush. So even if he said it is not a good use of Justice Department resources to target state-licensed growers and retailers, you would have to take it with a shakerful of salt. In the event, he did not address suppliers at all in his ABC News interview with Barbara Walters.

"As a politician," ABC News says, "Obama has always opposed legalizing marijuana." That's not quite true, since as a candidate for the U.S. Senate in 2004 Obama told a group of students at Northwestern University that "we need to rethink and decriminalize our marijuana laws." That is literally what Colorado and Washington have done, removing all criminal penalties for possessing up to an ounce and for growing or selling marijuana in accordance with state regulatons. (Colorado also has decriminalized home cultivation of up to six plants and noncommercial transfers of up to an ounce.) It is not clear exactly what sort of decriminalization Obama had in mind, but presumably he meant at least that users should not be subject to criminal penalties. That position proved inconvenient during his presidential campaign, when he went back and forth on the question of whether he still supported marijuana decriminalization. At one point, a spokesman said Obama had "always" favored that policy and had accidentally indicated otherwise during a debate by raising his hand in response to a question he had misunderstood. A week later, he retracted that correction.

What does Obama say now?

He told Walters he does not support legalizing marijuana "at this point." He said something similar last April, when he told Jimmy Fallon, "We're not going to have legalized weed anytime soon." Well, he was wrong about that, since Colorado and Washingtton legalized marijuana just seven months later. But maybe he meant that the federal ban on marijuana will not be repealed anytime soon. Putting these two comments together, I surmise that Obama will endorse marijuana legalization after it happens. Or maybe, like Bill Clinton, he is just waiting to leave office to express his actual opinion about the war on drugs, assuming he has one.

In the meantime, Obama says, "what we're going to need to have is a conversation about how…you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal." He calls it "a tough problem," because "I head up the executive branch; we're supposed to be carrying out laws." In truth, there is no need to "reconcile" anything; the states are under no obligation to punish every action Congress considers a crime. The question is how gung-ho the Obama administration will be in going after marijuana growers and distributors who are no longer subject to state penalties. The intensity of its response, which will help determine whether Colorado and Washington have the freedom they should to chart their own courses, is completely within Obama's discretion.

On Wednesday, ABC notes, Attorney General Holder said, "There are a number of issues that have to be considered, among them the impact that drug usage has on young people, [and] we have treaty obligations with nations outside the United States." The Single Convention on Narcotic Drugs requires signatories to enact criminal penalties for the nonmedical production, possession, and distribution of cannabis. But that requirement is subject to "constitutional limitations," which in the United States bar the federal government from demanding that the states ape its drug laws. Does the treaty compel the federal government to crack down on state-licensed marijuana suppliers in Colorado and Washington? Apparently not. Since the 1970s, the Dutch government, which is also a signatory, has nevertheless managed to tolerate retail sales of marijuana, which remain technically illegal. Similarly, the U.S. government could maintain its ban on marijuana while tolerating sales by state-licensed pot shops. Obama just needs a little Dutch courage.

Addendum: Ethan Nadelmann of the Drug Policy Alliance parses Obama's words at The Huffington Post, seeing hope in the fact that the president is no longer laughing at questions about marijuana and in his call for a "conversation" rather than a federal diktat.