The Perils of Pushing Pot Prohibition

Most Americans say the feds should not interfere with marijuana legalization in Colorado and Washington.

Three months ago, voters in Colorado and Washington approved ballot initiatives aimed at legalizing the possession, production, and distribution of marijuana. A month later, Attorney General Eric Holder said the Justice Department would settle on a response to this historic development "relatively soon."

How soon is that? I have been trying to get a response to that question from Justice Department spokeswoman Nanda Chitre for about a month, but she is not returning my calls. Meanwhile, the U.S. attorney's offices in Colorado and Washington decline to give any indication of how they will treat the state-licensed marijuana stores that are scheduled to open next year.

This caginess may be a good sign, reflecting the Obama administration's awareness that interfering with these experiments in pharmacological tolerance would be politically perilous. Survey data released last week indicate that most Americans think marijuana should be legalized, while an even larger majority says states should be free to make that decision.

In a Reason-Rupe Public Opinion Survey completed on January 21, 53 percent of respondents said "the government should treat marijuana the same as alcohol." Asked whether the federal government should arrest pot smokers in Colorado and Washington, 72 percent said no; more strikingly, by a margin of 2 to 1, the respondents said the federal government should not arrest newly legal growers or sellers either. Two-thirds of the respondents took that view.

These results indicate that some people who oppose marijuana legalization nevertheless believe the choice should be left to the states, as a consistent federalist would. Reflecting that tendency, most Republicans and self-identified conservatives in the Reason-Rupe poll supported marijuana prohibition, but most also said the federal government should not try to impose that policy on Colorado and Washington. A CBS News poll conducted in November generated similar results.

In a December interview with ABC News, President Obama said his administration had no plans to go after marijuana consumers, which the federal government almost never does anyway, but he did not say how state-licensed suppliers will be treated. He added that "we're going to need to have a conversation" about the interplay between state legalization and continued federal prohibition.

So far that conversation has been pretty one-sided. Last month Washington Gov. Jay Inslee talked to Attorney General Holder about marijuana legalization for 45 minutes. Afterward Inslee called the meeting "very satisfying" and "a confidence builder," although he emphasized that Holder had made no commitments regarding the possibility of trying to block legalization through civil litigation, criminal prosecution, or forfeiture threats.

In the meantime, both Colorado and Washington have begun writing the rules for growing, processing, and selling marijuana. The Washington State Liquor Control Board is holding hearings on its marijuana regulations, and in Colorado a task force appointed by Gov. John Hickenlooper is putting together recommendations, due at the end of this month, for state legislators.          

It surely is not lost on Obama that marijuana legalization got more votes in Colorado, a swing state, than he did, and nearly as many as he did in reliably blue Washington. Any attempt to override the will of those voters would provoke a hostile response not just from people in Colorado and Washington but from the large majority of Americans across the country who believe the federal government should mind its own business.

Wanda James, co-founder of Simply Pure, a Denver-based manufacturer of cannabis-infused food products that until now has served medical marijuana dispensaries, understands that getting into the recreational market could be risky. But she argues that trying to shut down that market would be risky for the president and his party.

"Three million people in America on election night voted to legalize marijuana," James says. "I can't imagine the U.S. government starting some arrest campaign on people who are compliant with their state laws. I just can't see the American government doing this when the will of the people is saying 'enough.'"