Can Andy Harris Go Back in Time and Stop D.C. From Decriminalizing Marijuana Possession? [UPDATED: White House Defends Marijuana Federalism]


Office of Andy Harris

The District of Columbia's marijuana decriminalization ordinance, which makes possession of up to an ounce a citable offense punishable by a $25 fine, takes effect this Thursday. The D.C. Council approved the law in March, and Congress had 60 legislative days to override the change through a joint resolution. Since it declined to do so, that's that. Or is it?

On June 25 the House Judiciary Committee approved an amendment introduced by Rep. Andy Harris (R-Md.) that would prohibit D.C. from spending public money "to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution" of marijuana or any other controlled substance. Even if Harris' amendment is approved by the full House and becomes part of an appropriations bill that the Senate passes and the president signs, it's not clear that it would accomplish what Harris wants. The amendment would not take effect until after the penalty for possession is reduced, at which point it will be more expensive to start arresting pot smokers again than it would be to continue with the new policy. In what sense does not arresting and prosecuting people for marijuana possession result in an additional expenditure of public funds?

Pot busts are a touchy issue in D.C.  because 91 percent of them involve blacks, who represent half of the city's population and, according to survey data, are no more likely than whites to smoke pot. Furthermore, Harris' own state of Maryland, which adjoins D.C., decriminalized marijuana possession this year, making possession of up to 10 grams a civil offense punishable by a $100 fine rather than a misdemeanor punishable by a $500 fine and up to 90 days in jail. So what is Harris' problem? He argues that a $25 fine is so low that it will encourage teenagers to smoke pot. "Society has some responsibility for protecting minors," he recently told The New York Times. "I think the D.C. law protects them in no way, shape or form." According to Harris, then, cops in D.C. should continue arresting adults for smoking pot—to protect the children.

Mayor Vincent Gray, who has urged D.C. residents to protest Harris' position by boycotting beaches in his Eastern Maryland district, argues that attempting to override the decriminalization measure is undemocratic, even if Congress has the power to do so under the Constitution. "He is interfering with democracy in this city, and we want people to understand how we feel about it," Gray told the Times. "Shouldn't the people of the District of Columbia in a democracy be permitted to make decisions? We have more people in the District of Columbia than in the whole state of Wyoming or in Vermont. I can't imagine Representative Harris feels he ought to interfere in the business of those two states."

I can, depending on the policies those states adopt. Harris thinks the feds should prevent states from implementing medical marijuana laws, for example. 

Addendum: The Drug Policy Alliance (DPA)  points out that Harris' rider could interfere with implementation of Initiative 71, a D.C. ballot measure aimed at legalizing possession and home cultivation (but not sale) of marijuana, if voters approve that measure this fall. Last week the initiative's supporters submitted 57,000 signatures, more than twice the number needed to qualify for the ballot.

Addendum II: In a statement issued today, the White House criticizes the Harris amendment, saying:

The Administration strongly opposes the language in the bill preventing the District from using its own local funds to carry out locally passed marijuana policies, which…undermines the principles of States' rights and of District home rule. Furthermore, the language poses legal challenges to the Metropolitan Police Department's enforcement of all marijuana laws currently in force in the District.

As far as I can recall, this is the first time the Obama administration has explicitly invoked federalism (as opposed to, say, Justice Department priorities) in the context of marijuana reform. "The statement calls marijuana reform a 'states' rights' issue," DPA notes, describing that as "a groundbreaking policy position for the White House to take." The shift in rhetoric is welcome, although it's a bit strange in this context, since the District of Columbia does not enjoy the same autonomy as states do under the Constitution.