The Federal Government Fails Its Constituents on Marijuana

Even as more states say yes, Washington remains a barrier.


miss.libertine / photo on flickr

One model of political statesmanship is figuring out where you want the country to go and persuading the people to follow in that direction. Another is figuring out where the people are going and hustling to get in front of the parade.

Then there is the third and most baffling model: watching the people stride resolutely in one direction and then giving them the bird as they go.

The first two square with our democratic ideals. The third doesn't. Unfortunately, it's the one being followed for federal policy on marijuana.

No fewer than 23 states and the District of Columbia have chosen to allow access to the drug for therapeutic needs. The public is on board: 86 percent of Americans think doctors should be allowed to prescribe it for serious illnesses.

Yet in the 19 years since California became the first state to try the idea, our elected representatives in Washington have done little to facilitate these experiments and a lot to obstruct them. Federal law has not changed, and federal drug agents and prosecutors are free to enforce it in cheerful disregard of state choices.

In 2013, a Stockton dispensary owner who was selling medical cannabis, as allowed by California, was sentenced to five years on federal charges. Last month, a jury acquitted five Washington state medical marijuana growers who were prosecuted by the feds—but convicted them on a single count that could send them to prison for 20 years.

Colorado and Washington have gone further yet by legalizing pot for recreational use, something now favored by a majority of Americans.

But these states also face federal obstacles. Although Attorney General Eric Holder said the Justice Department would generally accommodate the changes, dispensaries have trouble operating like normal businesses. One reason is that most banks won't touch them with a 10-foot pole.

"Marijuana is still illegal under federal law, and if we process funds from a marijuana business and something turns out to be wrong, we risk losing our charters," Rob Rowe, vice president of the American Bankers Association, told the Huffington Post. This aversion forces pot shops to rely entirely on cash for all transactions, which is not only monumentally inefficient, but makes them a tempting target for robbers.

The sensible thing for Congress to do would be to simply repeal the federal law against the sale and use of pot, leaving the matter entirely up to the states. But even though most Americans would applaud, our lawmakers are not about to take that step.

There are more limited reforms available, and last year, Congress actually adopted one. An appropriations bill prohibited the Justice Department from spending one thin dime to keep states from "implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana."

That change didn't faze the department, which takes the obstinate view that it may still prosecute individuals under federal law—and has refused to abandon cases undertaken before the amendment came to pass.

A California dispensary owner was convicted in 2008 on several federal counts for selling cannabis. After the appropriations ban, his lawyers asked a court to stop prosecutors from spending money fighting his appeal. But the Justice Department is still hoping to lock him up—merely for running a Morro Bay shop whose 2006 opening was attended by the mayor and city attorney.

So stronger measures are in order. Sens. Kirsten Gillibrand, D-N.Y., Cory Booker, D-N.J., and Rand Paul, R-Ky., have introduced a bill to assure that states may make their own decisions on medical marijuana. Patients who get pot under state rules would no longer be vulnerable to federal prosecution.

The legislation would promote more research by moving cannabis off the list of Schedule 1 drugs, which supposedly have no medical use. It would also let Department of Veterans Affairs doctors prescribe the drug, which some veterans use to alleviate their post-traumatic stress disorder.

Their legislation may not pass this session, but these senators clearly comprehend how the public feels about pot prohibition. Americans have realized that banning it is more dangerous than allowing it, and in the end they are bound to force change.

When one of Ernest Hemingway's characters was asked, "How did you go bankrupt?" he replied, "Two ways. Gradually and then suddenly." The collapse of the government's long campaign against weed is in the gradual phase, but the sudden phase is coming.

NEXT: Can the President Legally Kill Americans?

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  1. ” Then there is the third and most baffling model: watching the people stride resolutely in one direction and then giving them the bird as they go.”

    Also known as protecting your power and donors.

  2. There’s too much invested in keeping pot illegal for the feds to give up anytime soon. I’d guess that as many as tens of thousands of people’s livelihood depend upon it being illegal. From the cops to the jailers to the people who give mandatory counseling to “addicts,” pot prohibition is basically a jobs program. It also has the added bonus of destroying our liberty, which is something politicians of all stripes do not want to give up.

    1. They are clearly morons then. If pot really is the gateway drug they keep claiming it is, making it legal for everyone would jack up the hard drug users to never before seen levels. Just imagine the drug war then.

      1. Pot is the gateway to the black market. That’s what makes it a gateway to other drugs. I’ve never had someone behind the liquor counter offer me cocaine or acid, but pot dealers have.

        Thing is, cops know this. It’s their gateway to the black market too. The way they bust people who deal in hard drugs is by starting with pot users, then their dealers, and then working their way deeper into the black market. Making pot legal would make it more difficult for cops to bust people who deal in hard drugs, but it would also make it more difficult for anyone else to find hard drugs. Legalizing marijuana across the board, I think, would result in a reduction in the use of hard drugs simply by making it more difficult to gain access to the black market. But rather than see that happen, cops would rather keep pot illegal so they can keep their access to the people they want to throw in jail.

        1. Very interesting comment, especially about how legalizing pot would reduce access to harder drugs.

          I suspect that black-market dark-web site might counteract that though. If people find an online mechanism to buy acid and coke easily, they don’t need the pot dealer.

          1. There are a lot of people, me included, who would never trust something online to buy something illegal. You never know if you’re dealing with something legit or with a government agent.

            1. There are a lot of people, me included, who would never trust something online to buy something illegal. You never know if you’re dealing with something legit or with a government agent.

              That’s probably a good idea. :-}

        2. Legalizing marijuana across the board, I think, would result in a reduction in the use of hard drugs simply by making it more difficult to gain access to the black market.

          Why wouldn’t something else (cocain, for the sake of argument) replace pot as the gateway to the black market if pot were made legal?

          1. Pot is ubiquitous. I never worked in a restaurant that didn’t have at least one pot dealer. Waaaay more people use the stuff than most people imagine. Not so with other drugs. Sure the next most prevalently used drug would become the new gateway, but since fewer people use and sell other drugs, that gateway would be significantly smaller and more difficult to find.

            1. He’s correct. I joke that requiring pre-employment drug tests is merely to make sure one does not hire stupid potheads. I have yet to work in a commercial kitchen where, at minimum, part of the staff was not high or drunk, and the dealer is a member of the crew.

              1. And there’s usually at least one server sniffing the nose candy.

                1. Easy to find them. Their on-duty drink of choice is Rockstar and vodka.

            2. Fair enough.

              I look forward to using your (scaled down) model to argue for the legalization of cocaine in the not so distant future.

        3. I’ve never had someone behind the liquor counter offer me cocaine or acid

          Me neither. But a man can dream.

    2. “There’s too much invested in keeping pot illegal for the feds to give up anytime soon. I’d guess that as many as tens of thousands of people’s livelihood depend upon it being illegal.”

      So Hillary was right?! We can’t legalize it — there’s too much money in it!

    3. Don’t forget the bankers who clean up on money laundering.

  3. Pot is like gay in politics now. Most people are largely accepting that people want to be potheads. And like the gay movement, the pothead movement has to be careful that it doesn’t get hijacked by overzealous assholes who start turning people off.

    1. Potheads get loaded with some nice Girl Scout Cookie wax, and then swarm the kitchen and experiment with Rice-a-Roni and peanut butter frosting, not swarm their neighborhood like Jehovah’s Witnesses talking about this really nice shatter you simply must try.

      We’re fine with people not smoking our pot. More for us. And we bake our own cakes.

  4. “…that government of the people by the people for the people shall not perish from the earth”

    Sorry, Abe.

  5. Speaking of legal weed – I really wish I was in Colorado today. Any one of the I-70 ski resorts will do.

    1. I was in Keystone last week of March. Great week. But I actually enjoyed the Stranahan’s Colorado whiskey more than, er, any other substance in which I might have theoretically indulged.

      1. Just looked at the Copper Mountain webcam. *sigh*

    2. Meh. At this point the new snow just obscures the rocks.

  6. Someday we’ll design a government where most of the power resides with the states and local governments. The “Federal” government could just worry about foreign relations and national defense.

    1. Meh, I don’t see that lasting more than 70 or 80 years before the Federal government started grabbing up more power for itself.

      1. Government can only be limited by the self-restraint of people with power because if they abuse their power, who has the power to stop them?

        1. Armed citizens?

          1. They’ve got to be organized and ready to withstand the full wrath of the government. Basically they’ve got to be able to replace it. Then you’re right back where you started.

    2. Your ideas interest me and I would like to subscribe to your newsletter.

      1. Excellent! Search for “Federalist Papers” to subscribe.

    3. How bout we design a government with almost no power and mechanisms to punish those that would attempt to increase it.

  7. I think it has something to do with the bureaucratic power politics within the federal government. The DEA is a pretty big agency. They have friends, they have influence. The money they spend probably goes to the same defense contractors as other DOD money. Scaling down the drug war would hurt them badly. People in DC are closer to that politics than the rest of the country. They see lobbyists daily. Lobbyists paided by interests that benefit from the war on drugs.
    From that point of view, the anti-drug-war forces are this these distant vague and barely influential people. By contrast, they see people from the DEA all the time. They see people invested in the way things are all the time.

    1. Single term limits with interim votes of confidence = no need to get reelected = no need for money = no lobbyists

  8. So, why can’t those who are illegally prosecuted with federal funds raise the issue in court or have charges brought against those wantonly violating federal law that, in theory, prevents them from being prosecuted?

    1. Who will prosecute the prosecutor? The prosecutor?

      1. +1 quis custodes ipso custodiet

  9. OT: Elizabeth Warren By Hillary Clinton:

    It was always going to take a special kind of leader to pick up Ted Kennedy’s mantle as senior Senator from Massachusetts?champion of working families and scourge of special interests. Elizabeth Warren never lets us forget that the work of taming Wall Street’s irresponsible risk taking and reforming our financial system is far from finished. And she never hesitates to hold powerful people’s feet to the fire: bankers, lobbyists, senior government officials and, yes, even presidential aspirants.

    Elizabeth Warren’s journey from janitor’s daughter to Harvard professor to public watchdog to U.S. Senator has been driven by an unflagging determination to level the playing field for hardworking American families like the one she grew up with in Oklahoma. She fights so hard for others to share in the American Dream because she lived it herself.


    1. Times 100 is always gag worthy.

  10. Stupidest sentence i’ve seen so far today =

    “Hillary Clinton put to rest any doubt that she’ll co-opt Sen. Elizabeth Warren’s populist message in her presidential campaign by praising the Massachusetts Democrat’s “taming” of Wall Street in Time magazine.”

    How does ‘praising’ someone mean you’re NOT going to steal their “BLEED THE BANKERS!!” rhetoric (while masking your own wall-st-whoring)? Its never stopped democrats before.

    Bonus points for the author flagging the contrast here =

    “Sen. Rand Paul, the Kentucky Republican, touted the “passion for freedom” and “commitment to ideas” in writing about Charles and David Koch, the billionaire brothers who have spent aggressively on behalf of conservative candidates and political causes”

    I suppose i need to get used to the fact that “News” over the next year will seem remarkably like “Press Releases” by the DNC, endlessly touting the ‘exciting and positive’ elements of Hillary’s tired, boring political schtick, while endlessly shocked and appalled by Republican Evil Greed and Capitalist Apologia.

    1. *footnote =

      For all Warrens horn-honking about Wall St….

      …last i checked? that’s all it was. Zero actual ‘reforms’ proposed by Big Chief seem to have made it as far as Dodd-Frank or any other legislation.

      1. Seriously, but it runs the same with all these people. Just talking about something means it’s done. Look at the Iran negotiations.

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