Drug War

Eric Holder Ducks Question About Reclassifying Marijuana

An administration that often complains it doesn't have enough power to act unilaterally can do so with marijuana but says it can't.

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Outgoing Attorney General Eric Holder spoke at the National Press Club this afternoon on the topic of criminal justice and sentencing reform, talking about some of the ways he believed he's helped the Department of Justice break away from an institutional culture that called for a heavy-handed approach to drug crimes and suggesting he would keep working on reform issues even after leaving government work.

Asked after his remarks about whether he would recommend to the White House that President Obama reschedule marijuana, Holder repeated the administration's deceptive assertion that the executive branch cannot reschedule marijuana on its own, saying Congress had to do it after a national conversation of sorts.

"There is I think a legitimate debate to be had on both sides of that question" of how marijuana ought to be scheduled, Holder said, and it should "take into account all the empirical evidence that we can garner to see if it is as serious a drug that would warrant Class I categorization."

As Jacob Sullum noted last month, President Obama has admitted marijuana is less dangerous than alcohol, but even with no more elections ahead of him he appears unlikely to exercise his legal power to reclassify marijuana. Unlike legally dubious executive actions in other policy domains, reclassifying marijuana, apparently, can wait.

Holder's appearance at the National Press Club is still wrapping up. You can watch it live, or any part of it, below:

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  1. “he would keep working on reform issues even after leaving government work”

    In a couple years – maybe after Jan. 20, 2017 – we’ll probably reading articles about how “former Attorney General Eric Holder calls for drug-law reform.”

    1. The National Conversation Clause in the Constitution. Got it.

  2. Holder repeated the administration’s deceptive assertion that the executive branch cannot reschedule marijuana on its own

    “Deceptive” may be technically accurate, but it soft-pedals that fact that this is just a flat-out lie, contrary to blackletter law. Period. Full stop.

    The President has the authority to reschedule pot, all the way from Schedule 1 to Schedule 4. He can’t take it off the schedules altogether, but he can reschedule it without Congress having any say-so whatsoever.

    1. Well he did stop asset forfeiture.
      /snickers

    2. “”Deceptive” may be technically accurate, but it soft-pedals that fact that this is just a flat-out lie, contrary to blackletter law. Period. Full stop.”

      It’s on the first page of the style-book:
      “Ds do not lie. The can be “deceptive” or “mistaken”, but they do not “LIE”!

    3. In fairness, isn’t the United States under treaty obligations to treat marijuana the harshest way possible under its drug enforcement laws? In which case, it could require Congressional intervention to remove marijuana from Schedule I?

      /yes, I know presidents always do things regardless of a statutory right to do so. Let’s ignore that for a second, for argument’s sake…

      1. Specifically, the Single Convention on Narcotic Drugs (which classifies marijuana as Schedule I), ratified by the United States in 1972?

        1. As far as I can figure, the treaty doesn’t require marijuana to be on a particular schedule. Other countries don’t have it on the most restrictive schedule.
          And I don’t think that the UN schedule I is as restrictive as the US one, but allows for medical uses.

          1. Also, to confuse things some more, there are two different treaties, Single Convention on Narcotic Drugs and Convention on Psychotropic Substances, which both use numbered schedules, but with different definitions.

        2. I do not believe that the treaty repeals existing federal law that allows the President to reschedule pot. That federal law was passed, let’s not forget, after we signed the Single Convention.

          You can argue that doing so would violate the treaty, I suppose, but so what? Lots of other countries have apparently violated the treaty.

          It does add complication, I suppose. This is a decent write-up of the issue.

          http://www.google.com/url?sa=t…..Xb8Kj_PQEg

          I would note that, if you accept the argument that the Single Convention requires that pot be on Schedule 1, then Congress doesn’t have the authority to re- or de- schedule it, either, without first withdrawing from the Convention.

          1. I thought international treaties have the exact force as Congressional statutes in the United States. A duly-passed law can effectively repeal a legal treaty obligation.

        3. To throw more confusion, the international agency tasked with enforcing this convention has stated the US Government is in violation for allowing the CO/WA legalizations to go forward.

          1. More evidence that the UN is a complete joke.

            On the question of treaties and what force they have, it seems like treaties like this pose a big constitutional problem. If the treaty does require that states have laws criminalizing marijuana, then treaties could be used to completely destroy federalism. I doubt that was part of the intention of the people who wrote the constitution. My gut tells me that any treaty that requires specific criminal laws be enforced within a country should be invalid. Treaties should be about relations between countries.

    4. I don’t know about any particular presidential power in that regard, but the Justice Dept. can, with the cooperation of HHS, reclassify pot into any schedule or take it off entirely. Trouble is, no matter how it’d be done, pot really isn’t amenable to regul’n by the remaining food & drug laws. The only practical way to proceed would be for “cannabis” (without further description, or maybe just a species name but not a cultivar, no preparation details) to be declared GRASE by FDA (by convening an advisory panel & taking its word for it), and that’d just be too much for regulators to swallow because it’d be such favoritism over other substances that might have medical use. Much more comfortable for the entire establishment for pot just to be made a special case legislatively, as many other products & product classes are in the federal & state food & drug laws. They’d rather be able to say this one bypasses the rules politically, than to have to say that following the same rules as everyone else, this is the result.

  3. Eric Holder Ducks Question About Reclassifying Marijuana

    Has he quacked? What a quacky question.

    1. Wait until the bill comes in.

      1. No matter, everything’s ducky.

      2. That’s where the vaseline goes.

  4. Who needs to reschedule? The President and the Attorney General have prosecutorial discretion.

    1. I’m not sure how I feel about prosecutorial discretion. it seems to me if you have to prioritize crimes then you have too many laws.

      1. There’ll always be discretion. And there should be. Laws are written to regulate future conduct and, hence, they’re written somewhat vaguely. It’s the executive’s job to make sure laws are executed fairly and not necessarily to the letter.

        Whether there are TOO MANY laws is a completely different question. (The answer to which is “yes”.)

        1. I probably do not understand discretion. I thought they set priorities and that is what prosecutors went after. If it means “yes this guy broke the law, but he had a good reason.” then I would find it more palatable.

          1. No, prosecutorial discretion is exercised on a case-by-case basis.

            General rules (such as, don’t prosecute people who have pot) are not within the purview of the prosecutor. Those are known as “laws”, which are not drafted or passed by prosecutors.

        2. That’s just another reason for victim prosecution. Let them prioritize their own life, don’t leave them stuck with convincing a government bureaucrat that their case is more important than others.

    2. That would be something they could do. But the need to reschedule has to do with more than the prohibition angle. Being Schedule I prevents real, proper medical research from being done on something that seems to have real therapeutic potential.

      As I say below, even if you grant that controlling and criminalizing certain drugs is a good idea, having marijuana on Schedule I is just wrong in terms of what the law says.

      1. Would you say that if you knew that 90% or more of that work would be funded by gov’t grants, and that gov’t depts. would be deciding on competitive grant appl’ns between work on pot & work on other things?

    3. Prosecutorial discretion is a terrible idea. Either a law is just or it isn’t, although when dealing with legal positivism you are guaranteed the vast majority are unjust.

      Relying on discretion allows way too many unjust laws to silently accumulate, allowing prosecutors to simply reach into their grab-bag of laws that you did not know about to threaten you with.

      1. This +1000

    4. Down that road you get the Dutch solution, which is that they’re theoretically de-emphasizing enforcement against the coffee shops. It seems to be fairly stable over there, but Americans are too principled.

      1. You misspelled “stupid”.

  5. “There is I think a legitimate debate to be had on both sides of that question” of how marijuana ought to be scheduled, Holder said, and it should take into account all the empirical evidence that we can garner to see if it is as serious a drug that would warrant Class I categorization.”

    Oh my god, what a load of shit. There is no question at this point that marijuana has legitimate medical applications and that it is not very dangerous. Even if you were to grant that drug prohibition is not completely evil and that controlled substances should be controlled, keeping marijuana on Schedule I is clearly contrary to what the law says.

    1. Oh my god, what a load of shit.

      No kidding. He thinks there’s a legitimate debate to be had about a scientific, provable, repeatable fact that contradicts the plain language of the law. If there’s a debate to be had about that, then I guess it’s time we had a legitimate debate about whether the sun comes up in the east or the west.

    2. The authorities would be much more comfortable if Congress exempted marijuana statutorily like the way it says tobacco, wine, malt beverages, and distilled spirits are not controlled substances, or the way saccharine got exempted every so many years from the Delaney clause.

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  7. Not the only subject our vaunted AG has ducked questions on, is it?. I didn’t think so.

  8. Re his remarks at The National Press Club,, did he have anything to say, or was he questioned re the Operation Fast and Furious operation, and it’s sill ongoing cover-up? Might the sachems of The Fourth Estate have been fed some sleeping pills in their martinis?

  9. There will be no conversation because we, and the Congress we elect,
    are a Nation Of Cowards.

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  11. I have work in two juvenile private prisons 80% black and most of those kids should never of been their granted some were dam evil,however most were good kid that should never of been there. Its the ignorance and hysteria of cannabis that is much to blame this wrong and we have to men of color that could bring about change with the stroke of the pen and end the immorality of prohibition.

    1. While I don’t really disagree with your points, I wish you would make them using comprehensible English. Just saying.

  12. How is there a legitimate debate when even the DEA said MJ is safe and efficacious for medicinal use; In 1988, DEA Administrative Judge Francis Young wrote in his ruling;
    “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care.”
    ccguide.Org/young88.php

  13. Holder of course ignores the fact that there’s no constitutional authority for the whole fucking “war on drugs” in the first place.

    -jcr

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