Drug Policy

Totally Disinterested Drug Warriors Demand That Holder Stop Marijuana Legalization Before It's Too Late

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Bensinger, DuPont & Associates

In an open letter released today, eight former heads of the Drug Enforcement Administration (DEA), four former drug czars, and assorted anti-drug groups urge the Senate Judiciary Committee, which is scheduled to hear testimony from Attorney General Eric Holder tomorrow, to grill him about why he is not stopping Colorado and Washington from legalizing marijuana. Here are the questions they want Holder to answer:

1. Why isn't the Department of Justice enforcing the Controlled Substances Act in Colorado and Washington? Do you still agree that under the Supremacy Clause, Article VI, clause 2 of the U.S. Constitution, and long- and well-established U.S. Supreme Court precedent, federal law preempts state law when there is a conflict between the two?… 

2. What is being done to honor our international drug control treaty obligations, which require the United States as a nation to enforce the law prohibiting the distribution, sale and cultivation of marijuana?

The Justice Department, of course, has not stopped "enforcing the Controlled Substances Act [CSA] in Colorado and Washington." Not even the part dealing with marijuana, as a look at recent press releases from the U.S. attorney's offices in Colorado, the Eastern District of Washington, and the Western District of Washington will confirm. That does not mean the feds are going after everyone who violates the federal ban on marijuana, but they have never done that. Not even close. State and local law enforcement agencies are responsible for 99 percent of pot busts, which in turn represent just a tiny fraction of marijuana offenders. So what the former DEA administrators really want to know is why the Justice Department is not enforcing the CSA more. For example, now that it is legal for adults 21 or older to possess up to an ounce of marijuana in Colorado and Washington, and to grow up to six plants at home in Colorado, the Justice Department could try to pick up the slack by busting large numbers of pot smokers and small-time growers. Whether that would be a good use of Justice Department resources is open to debate, but there is no question that Holder and his underlings have the authority to make that call (leaving aside the dubiousness of the Commerce Clause interpretation that allows federal action against intrastate drug activity).

Similarly, the Single Convention on Narcotic Drugs calls upon signatories to make the production, possession, and distribution of marijuana for nonmedical use "punishable offenses." It does not say signatories must actually punish every such violation, or most of them, or any particular percentage. Nor does it say that the U.S. government must compel every state to punish people for marijuana offenses. To the contrary, the treaty says its obligations are subject to "constitutional limitations," which in the United States means (among other things) that the federal government may not compel states to punish every act that Congress deems a crime. Even if the treaty did not include this provision, treaties cannot give Congress powers the Constitution does not grant it. The Single Convention also says the parties "shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant." Again, that provision cannot override the U.S. Constitution, and there is considerable leeway in determining exactly what measures are "necessary." 

In a report issued today, the International Narcotics Control Board (INCB) "notes with serious concern the ongoing move towards the legalization of cannabis for non-medical purposes in some parts of the United States of America." It says the legalization of marijuana in Colorado and Washington "constitutes a significant challenge to the objective of the international drug control treaties to which the United States is a party." It reiterates its call for the U.S. government to "take necessary measures to ensure full compliance with the international drug control treaties in its entire territory." But the INCB does not claim those "necessary measures" entail forcing Colorado and Washington to recriminalize marijuana. Presumably the INCB, like the former DEA administrators, would like to see more federal action against marijuana offenders, but the anti-drug treaties do not require that. "Full compliance" with the treaties does not mean eliminating all marijuana use; if it did, every signatory would always be out of compliance. Nor does the treaty preclude the Justice Department from deciding, after state-licensed marijuana stores open in Colorado and Washington, that raiding them and prosecuting their operators is a poor use of its resources, especially in light of our federalist tradition and the choices made by voters in those states.

As reflected in their reference to federal pre-emption, the former DEA heads still seem to be hoping for a Justice Department lawsuit aimed at blocking the Colorado and Washington laws from taking effect:

[Peter] Bensinger…said not acting forthrightly to sue the states might create "a domino effect" in which other states follow suit.

"My fear is that the Justice Department will do what they are doing now: Do nothing and say nothing," said Bensinger. "If they don't act now, these laws will be fully implemented in a matter of months."

Such litigation is unlikely to be successful, for reasons I explain here and here. As for a "domino effect," Bensinger's fear is my hope.

"The former DEA chiefs' statement can best be seen as a self-interested plea to validate the costly and failed policies they championed but that Americans are now rejecting at the ballot box," Drug Policy Alliance Executive Director Ethan Nadelmann suggests. "They obviously find it hard to admit that—at least with respect to marijuana—their legacy will be much the same as a previous generation of agents who once worked for the federal Bureau of Prohibition enforcing the nation's alcohol prohibition laws."

As my colleague Mike Riggs points out, more than pride is at stake here. Two of the letter's signatories, Bensinger and former National Institute on Drug Abuse Director Robert DuPont, are partners in Bensinger, DuPont & Associates, "a leader in employee assistance programs" and "drug testing management." The letter went out on the stationery of Save Our Society From Drugs, a group founded by Mel and Betty Sembler, who used to run the abusive drug treatment outfit known as Straight Incorporated. Another Sembler organization, the Drug-Free America Foundation, has a contract with the federal government to help businesses develop drug testing programs. The letter's signatories also include the Colorado Drug Investigators Association, the American Society of Addiction Medicine, the Institute for a Drug-Free Workplace (which is backed by companies that sell drug testing services), and Educating Voices Inc., a provider of anti-drug "educational materials" and "technical assistance." They declare that "sound drug policy must be rooted in evidence-based science, not driven by special interest groups who are looking to profit at the expense of our nation's public health and safety."