The Speakeasy Blog
Two reports came out today about the federal government's attacks on medical marijuana providers. First, California NORML surveyed court records connected with medical marijuana cases, finding nearly 500 person years of incarceration for medical marijuana defendants. Second, Americans for Safe Access has estimated $300 million spent by the Obama administration on anti-medical marijuana enforcement, after $200 million spent in two terms of the Bush administration -- half a billion total.
Some people argue that these people knowingly took a risk, violating federal law, and even if one disagrees with a law, it's the law and prosecutors are bound to uphold it. But that misses a basic ethical point, and a practical one. In practical terms, police and prosecutors have discretion to focus their resources on the cases of most importance to them. They also can choose not to prosecute, or make deals to let people out of prison time, no abuse of discretion being thereby committed. In many cases that's what happened.
And so in a situation such as this one -- states passing pro-medical marijuana laws, now even legalization laws, the Obama administration effectively encouraging people further by promising a more-or-less hands off approach to the issue, that clearly would have been the right approach for officials to take. If they felt (rightly or wrongly) that they had to shut down certain operations, the ethical approach, given all that came before, would have been to tell the people things have changed, they have to stop doing what they're doing or face prosecution, but giving them that chance. (The same idea applies to Marc Emery, whose business was accepted by authorities for nine years until they hit him with the years he's serving.)
Instead of doing that, in the many cases CANORML has highlighted, they instead let the parties go about their business for years, until they had the evidence compiled they would need to get the extremely harsh sentences they wanted. If these outlets were really harming the public, shouldn't they have moved to close them down as soon as they could instead? I thought the point of our laws was to protect the public, not to destroy the individuals targeted by the law.
Those are a few of the reasons it's an angry afternoon for me.
Here are the Initial Draft Rules promulgated by the state Liquor Control Board. Today is the last day to submit comments before the board begins the process of crafting the official draft rules. That process will include public hearings.
An assessment of the initial draft rules by the Henry Wykowski law firm is available here.
I'll be interviewing various interested parties for a feature article later this week. In the meantime, the two links above provide a start.
Some bizarre news today:
An Idaho man charged with attempting to assassinate President Barack Obama by shooting at the White House practiced with his weapon for six months and may have been upset about the country's marijuana policy, prosecutors said in a newly filed court document.
Oscar Ramiro Ortega-Hernandez is currently awaiting trial for the 2011 shooting, which didn't injure anyone but left more than five bullet marks on the executive mansion.
Assuming it's true, no thank you to Mr. Ortega -- not the kind of help we need.
It was not the kind of day those three people or their friends had planned, and that's the most important thing to keep in mind. It was also not the kind of day that thousands attending including many who traveled from afar had planned either. It's lucky there were no trampling injuries, at least no serious ones, apparently.
Without forgetting what's most important -- the people most directly affected -- it's also worth noting that this is obviously not the kind of headline that legalization advocates wanted. The story had the top spot on Google News for a time last night, and continues to hold front page placement as I write this. That's an unfortunate accomplishment, particularly after the grim and violent week we just lived through. But does it hurt the cause?
After looking through news reports, I don't think so. The only criticism of the idea of the rally was from a Colorado anti-marijuana group, appearing well toward the end of the article. Most of it was sympathetic reporting about the victims, about organizers cooperating with police, police looking for information on the suspects, who the musical acts were, how police even before Amendment 64 passed had focused on crowd safety rather than marijuana enforcement during Denver's 420 events. I have not yet seen any quotes suggesting that marijuana use had any connection to the violence, though I've not done an exhaustive search.
Of course there's an opportunity cost from this unfortunate story replacing the story we'd hoped for of legal marijuana becoming a mainstream, accepted reality. And it's hard to know whether the coverage reflects maturation on the part of the media's treatment of the marijuana issue, vs. the violence forcing things into perspective. But I lean toward the former, and there's some comfort from seeing marijuana reformers and public safety personnel so clearly on the same side. At least that's how it looks from a distance. Our movement is part of larger society, and we are vulnerable to all the same dangers.
Let's hope the victims' injuries are no worse than reported, and for their swift recovery.
That may be a less bold prediction than in the past -- with the highest-ranking Republican senator supporting hemp now, Mitch McConnell, it should be more likely -- but it's still a fairly bold prediction, when one thinks about just how long Congress has refused to do anything for this utterly no-brainer of an issue. One of Blumenauer's reasons was that a House bill to legalize hemp growing, H.R. 525, also is being sponsored by a Kentucky Republican, Thomas Massie.
You heard it here first. (Unless you also watched the Brookings forum.)
Illinois going for medical marijuana could be what gets Sen. Durbin involved. Durbin is the second highest ranking Democratic senator, and so it could be a big advance. Durbin supports medical marijuana, and was a cosponsor in 2004 of "Truth in Trials" legislation to allow it in states that allow it. But 2004 was a long time ago, and the Senate has seen little in the way of medical marijuana legislation to advance.
Phil will be doing a feature story on the bill tomorrow, but not in time for tomorrow morning's email editions, so be sure to check Drug War Chronicle this week. (If you don't get the Chronicle by email, you can sign up here.)
"NYPD Spent 1 Million Hours Making 440,000 Marijuana Possession Arrests Over Last Decade"
Many of those hours involved overtime pay too. It really sums up the stupidity of it all, in a pretty special way. (The injustices were addressed last week.)
Also, there's a lawsuit, and a judge told NYPD to stop "stop and frisk" arrests in the meanwhile. (But have they?) And Gov. Cuomo continues to push for full decrim to plug the "open view" loophole officers have abused to make all these arrests.
Phil is working on a story for the Chronicle, but there are some links in the meanwhile.
Prof. Kleiman has responded to concerns raised over his remarks during the Prop 19 campaign in California, predicting that Prop 19 would cause prices to plummet and that the feds would have had to intervene in ways going beyond how they've dealt with the medical marijuana trade. He doesn't see that happening in Washington State; he thinks it may well happen in Colorado. He called it a "fair question."
I'm not making anything out of the fact that Kleiman hasn't addressed that point, by the way -- I don't know that he's read my post yet, and that particular point did not appear in the mainstream media articles he surely did read. Nor do I think that much should be made of it in 2013. But that's how I see that particular point, and therefore how I view that two and a half year old editorial.
I'm still cautiously optimistic, after reading the response, maybe even a little "excited" (I confess) as Kleiman wrote that he and his colleagues are feeling. Some of my colleagues have commented, and I tend to agree, that a cautious approach to implementing the Washington initiative is what will have the best chance of threading the federal needle and moving legalization forward -- especially in Washington, where the law allows for fewer licensed sales outlets and doesn't have home growing as Colorado does. And Washington or parts of it may provide our best shot at getting something resembling meaningful federal cooperation.
Some of my colleagues probably disagree with me, and many undoubtedly feel we should be wary. As a practical matter, I agree that we should be wary -- it's our responsibility as advocates to be wary, whoever the state decides to bring in. But it's also not like we get to decide who does the work on this -- our direct power to influence this ended on election day -- and I wasn't really expecting it to be someone from the all-out legalization camp.
As I wrote last night, time will tell -- about Kleiman et al's work, and about the future of I-502 and marijuana legalization in Washington State.
Prominent policy analyst and UCLA professor Mark Kleiman has won Washington State's consulting contract on I-502 implementation. According to Northwest Public Radio, "Washington's Liquor Control Board wants consulting help in four areas: marijuana industry knowledge, plant quality and testing, regulation, and to the extent possible, projecting how many people will use pot now that it's legal."
A quote that caused some consternation among reformers is one he gave to the LA Times during California's 2010 Prop 19 campaign:
"There's one problem with legalizing, taxing and regulating cannabis at the state level: It can't be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can't legalize a federal felony. Therefore, any grower or seller paying California taxes on marijuana sales or filing pot-related California regulatory paperwork would be confessing, in writing, to multiple federal crimes. And that won't happen."
I think the quote deserves some criticism. Medical marijuana provision is also a federal felony, under the same law Kleiman cited with regard to legalization of marijuana. Kleiman's arguments in the piece -- that the feds can afford to largely ignore the medical marijuana industry only because prices remain high, and because regulation of medicine is traditionally a state matter -- are unpersuasive to me. Administrations in power during the medical marijuana years have not suggested that medical marijuana is a state matter; even Obama's inconsistently-respected "not a priority" position about going after businesses operating in compliance with state law, made clear that they can go after any medical marijuana business if they think it's in the federal interest to do so. And Kleiman or his coauthors during book talks and related fora I've attended have argued that we don't know what will happen to marijuana prices following state legalization in the face of continuing federal prohibition. One reason they've argued it might not is that federal prohibition makes it too risky to set up the very large scale growing and distribution infrastructures that are needed to bring down prices in the way that we'd predict from legalization at all governmental levels.
Still, I count myself among the optimistic when it comes to Kleiman's work for Washington State. Kleiman prefers a very non-commercial form of legalization to any big sales model. But he's also suggested the federal government allow the Washington and Colorado experiments with legalization to take place. And whatever quotes I might take issue with from time to time, Kleiman is a very serious academic who's written extensively about the issue; and he's not a drug warrior, even if his support for legalization, even of just marijuana, tends toward the tepid. I expect he'll do the best job he can on this very high profile assignment -- that assignment being to advise on the implementation of legalization, not on whether it's a good idea. (I also saw Kleiman wearing a Students for Sensible Drug Policy t-shirt at the Takoma Park Folk Festival one year. :-)) I can think of plenty of people who might have been in the running for the job, who would make me a lot more nervous than Kleiman. But time will tell.
Anyway, along with some articles linked here, CNN has pitched an interview with "Washington State's New Pot Czar" on "Erin Burnett OutFront" tomorrow (Tuesday) night. Perhaps the interview will provide some indicators of where Kleiman might go with this.
A recent report by the UN special rapporteur on torture charged that compulsory drug treatment centers in some countries, particularly Vietnam and Thailand, constitute "forced labor" camps that engage in "torture." Long-time addiction writer Maia Szalavitz wrote about this in Time last week, and Phil did in our newsletter last Monday. The report is online here.
Nevertheless, in its 2011 annual report, published five months after HRW's, the International Narcotics Control Board had only this to say in relation to Vietnam's treatment centers:
In September 2010, the Government of Viet Nam issued a decree on the strengthening of family-based and community-based drug treatment and rehabilitation services. In March 2011, the Ministry of Public Security of Viet Nam adopted measures to improve the collection and analysis of drug-related data. In June 2011, the Government of Viet Nam adopted the national strategy on drug control and prevention for the period ending in 2020. Based on that strategic document, the national target programme for the period 2011-2015 was developed to address drug-related issues in the country.
The Board welcomes the steps taken in Viet Nam to improve the treatment and rehabilitation of drug abusers and the efforts made in participating in different projects sponsored by [the UN Office on Drugs and Crime, UNODC] in that area. The Board encourages the Government to reinforce and support existing facilities as well as to undertake capacity-building in the field of treatment for drug abusers.
The 2012 INCB report, released last week -- more than a month after the special rapporteur's report was released -- offers just this:
The Government of Viet Nam launched its new national drug control and crime prevention strategies in July 2012. The strategies highlight the need for a comprehensive national response that combines effective law enforcement, drug abuse treatment and rehabilitation measures that allow for better integration of former drug dependent persons into society and the active participation of communities in crime prevention.
I understand that any system involving confinement has the potential for abuse, in the best of times and places, and that any one report on a subject can miss the mark. But we have allegations from a respected organization, and now from the UN itself, of systemic abuses, of a degree of seriousness that would seem to invalidate the entire project. Presumably international funding is in the mix at well. So why not even a word about it, from the self-described "quasi-judicial body" overseeing the international drug control regime?
Open Society Foundation's Joanne Csete noted comments by the late Hamid Ghodse, then INCB chairman, at the Commission on Narcotic Drugs last year, disclaiming any role for human rights concerns in the drug treaties or his agency. But that is not the stated position of the other main UN drug agency, UNODC.
So do we have a scandal in the making -- or better yet, an opportunity to reform the international drug control regime?
[By the way, Csete's afore-linked essay is part of the LSE IDEAS report included in our current membership offers.]
I am presenting at a symposium sponsored by the Cardozo Public Law, Policy and Ethics Journal, "The War on Drugs: Working Toward a Ceasefire," this Wednesday 3/13 at Cardozo Law School in NYC. The event includes a screening of the Eugene Jarecki documentary "The House I Live In," at 10:00am. My panel starts at noon, there's a second afternoon panel, and a keynote address by Judge John Gleeson on federal mandatory mandatory minimum sentencing. It is open to the public, but RSVPs are required in order to gain entry to the building -- email the Journal or use the Paperless Post invitation to sign up.
Both of those positions may be overreaches. It's true that federal marijuana legalization would require revision of the drug treaties, if the US is not to be in violation of them (or for the US to do what Bolivia did by withdrawing and then rejoining "with reservations"). Legalization by Congress even just within states that have enacted it is also a likely treaty issue. But Colorado and Washington aren't parties to the treaties, and federal law remains in force within those states. The states have simply ceased to contribute their own resources to a part of the prohibition program. Under our federal system they very probably have the legal right to do so.
And that is why the DEA chiefs have overreached as well. When one says that federal law is supreme in this area, it means that federal agents can use the powers they have to bring criminal or civil actions against marijuana users or sellers, despite the passage of state laws -- the Raich case decided that for medical marijuana, for reasons that would seem to apply to fully legalized marijuana too. But that doesn't mean the states have to help them. We have a federal system. As I've pointed out previously, no federal prosecutor in 16 years of state medical marijuana laws has ever argued in court that the states can't have those laws on their books. Clearly they've had incentive to do so, if they thought they could win that way.
I don't argue that we know for sure how these points will come out if they are adjudicated -- it is new legal territory. But most legal scholars seem to think a preemption ruling would be a long shot outcome. So that is how it looks to me.
[If you haven't already, please order the two recent reports, from the Cato Institute and the London School of Economics, addressing these two very issues -- available in harcopy on our web site for a small donation.]
"[D]ecriminalizing possession is not in the EU strategy, but if you take the EU strategy as a whole, the clear conclusion is that all-out prohibition is ineffective, expensive and not supported by any evidence base."The EU can't enact decriminalization itself, but through the thrust of its strategy they provide political ammunition to policymakers who would like to move their national policies in that direction -- in countries that are EU members as well as countries applying for EU membership.
This is what he had to say about the United States on drug policy:
"With the US, we tend to disagree on a lot of things -- we've had the US against us in Vienna [where the UN drug agency is headquartered] for quite a few years. The US is allergic to a lot of the European evidence-based approach and appears to be far more interested in supply reduction then in harm reduction. And it's not very fussy about human rights."
Relatedly, there are some very enlightening articles on both of those topics in a recent London School of Economics IDEAS special report, Governing the Global Drug Wars. (This is one of the two reports whose hardcopies we're providing as part of our latest membership offer.) Another big of StoptheDrugWar.org promotion: check out speeches by (now former) Member of the European Parliament Marco Cappato at our 2003 conference in Mexico, "Out from the Shadows: Ending Drug Prohibition in the 21st Century."
I am participating on a HuffPost Live panel starting at 11:30am EST this morning: Is Mexico's Security Policy Failing?
Update: The archive is already online, embedded below. The link from the live broadcast is also the permalink.
The panel was hosted by commentator Alicia Menendez, and I shared the panel with Alejandro Hope of the Instituto Mexicano para la Competividad, Prof. John Ackerman of the Universidad Nacional Autónoma de México, and former ONDCP official Paul Chabot.
Harborside is in the news again today. Two weeks ago we noted the premiere (and largest) dispensary had won a battle in state court. Facing threats by federal authorities over Harborside's marijuana distribution, their landlord attempted to evict them, only to be rebuffed by a judge because she had authorized Harborside to engage in exactly that business there in the lease.
"We invited (U.S. Attorney) Melinda Haag to come to Harborside to tour to take a look at the way we do things," Harborside Executive Director Steve DeAngelo said Thursday outside court [according to NBC]. "Because I think the federal government should be studying Harborside not trying to close us down. We've developed a great model for responsible and legitimate distribution of cannabis."
According to the LA Times, the city's lawsuit "contends that federal prosecutors missed a five-year statute of limitations to seize Harborside's properties and misled Oakland officials with a 'pattern of false promises' that they would not go after dispensaries that were complying with state and local laws." The feds in turn say they've always reserved the right to go after any dispensary, and dismissed attorneys' arguments about the needs of patients who will be driven to the illicit market.
Those issues will in all likelihood be decided based on the technical legal merits, and we've known all along we faced tough prospects in the courts, especially since the Raich ruling. Still, the city's arguments, whether legally persuasive or not, are accurate. Obama administration officials did mislead the city -- the country -- about their intentions with regard to state medical marijuana laws. Whether they did so deliberately or through mere inconsistency is irrelevant. When Sen. Patrick Leahy (D-VT) asked the attorney general to make the administration's intentions toward marijuana legalization in Washington and Colorado known, the unspoken corollary is how inappropriately they've handled communications about medical marijuana. That's bad enough when a business or city gets harmed. But some of the victims are in prison or dead.
Haag must see that she is on the losing side of history by now. The question is how much carnage she and her cohorts will inflict by holding out. It would be better to have some reason from the feds sooner rather than later -- some reason and some decency.
P.S. Watch why Scott Morgan considers Harborside The Best Place in the World to Buy Marijuana:
Oregon's Measure 80 is an interesting case. While it was reported as losing 45-55, the pro total actually crept up to 46.3% when all the returns were finally counted. This was with virtually no funding, though perhaps benefiting from discussion of the issue in neighboring Washington, and with language that was far more radical in most respects than either Washington's or Colorado's measures. With a better-written initiative and the funding that would likely attract, and with legalization happening next door as Dickinson pointed out, Oregon could be a winner soon -- if not 2014 and the expected more conservative turnout expected in an off year election, then in 2016.
Also interesting about Oregon, is that I thought the loss there while two other states passed would settle the debate over how to write an initiative -- whether to poll and do focus groups and write one that the research says can pass, or to just go for broke with the language you like -- the two initiatives that did the former won, the one that did the latter lost. But given how well Measure 80 did despite having no funding has some activists including a number of friends of mine saying that we don't have to compromise, or compromise as much, in order to win. If the funds come on board, the money and the real campaign it would enable could make up those 3.7 percentage points, is the reasoning.
I don't believe the money would make up those percentage points. I believe it is more likely that there is a swath of voters who agree with legalization in principle, but are picky about what kind of initiative they would approve, and that initiatives written the right way for them (or for the opinion leaders they take seriously like the former law enforcement and others who supported Washington's I-502) probably swung a significant percentage of voters. I think that Oregon was a special case, because of what was happening at the same time in Washington. And I think that a real campaign in Oregon, would have resulted in a greater amount of discussion about the details of the Oregon initiative (especially if polls suggested it had a chance), increasing the negative impact that certain aspects of it would have had on the aforementioned picky legalization supporters.
But do I know that for sure? No. Oregon's vote should certainly be studied to see what can be learned. So should Colorado's, a system that is pretty different from and a lot more open than Washington's. (At a Cato forum last week, former DEA chief Asa Hutchinson scarcely even mentioned Washington.)
One way or another, it is very likely that a page of history turned last month. Whether as many as seven states will go for legalization in the next few years, or whether Rolling Stone has called all the right ones, only time can tell. But the optimism is certainly appropriate -- time is on the side of marijuana legalization, and I hope for overall drug reform as well.
I have criticized the ease with which some media outlets and even some reformers have accepted the argument made by prohibitionist advocates that courts are certain to overturn the Washington and Colorado marijuana legalization initiatives, or their regulatory systems at least, based on federal supremacy. Most legal scholars in the news have expressed skepticism that a preemption challenge of the laws, as it's called, would succeed, though we can't know for sure until and unless that goes through the courts.
How easy would this to be address? Pretty easy. Bolivia did it this year. That nation has had problems with the treaty ban on coca growing, even for traditional purposes (purposes other than cocaine) as has been done in Bolivia for thousands of years. Attempts to enforce the ban through US-backed eradication programs have fomented civil instability, ultimately leading to a backlash in which a coca grower and indigenous leader, Evo Morales, won the presidency in 2006. (Shameless promotional fact: Morales's vice-president, Álvaro García Linera, spoke at our 2003 conference.)
What happened is that the Morales administration sought a modification to the Single Convention to address the coca issue, but was rebuffed. So late last year, they withdrew from it. Then they announced they would rejoin the treaty on January 1, but with "reservations" stating their non-participation with respect to the coca provision. If one third of member nations object to Bolivia's readmission to the treaty -- by the end of this year, if I'm not mistaken -- they can be prevented from rejoining it, and potentially have problems in some regulatory areas. But other countries would suffer problems from that as well, and it is unlikely.
The US could do that too. Or, and better, we could seek the revision of the treaties to permit legalization. The US would be powerful enough to pull that off, and the rest of the world is mostly concerned with their own interests and are not clamoring for the continuation of marijuana prohibition in the US in any case.
One way or another, it will be pretty easy to handle the drug treaties, once the political will exists here to enact legalization under our own laws. The treaties are a valid issue, but not a difficult one to surmount.
Leahy wants information:
How does the Office of National Drug Control Policy intend to prioritize Federal resources, and what recommendations are you making to the Department of Justice and other agencies in light of the choice by citizens of Colorado and Washington to legalize personal use of small amounts of marijuana? What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?
But it's even bigger than that. Leahy is planning committee hearings on marijuana legalization, to include consideration of legislative options, including "amend[ing] the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law."
I am wondering just how huge this may be. Leahy has good views, but he's also a careful senator who would not care to be at odds with his fellow Democratic committee members or the president. He's also a former prosecutor who dislikes uncertainty or disorder in the law and its implementation.
On the other side of the aisle are Tea Party and other Republicans who may or may not like legalization, mostly don't want to say so if they do, but have campaigned on states' rights. One Colorado Republican, Mike Coffman, has cosponsored a recent bill to allow for state marijuana legalization, despite having voted against the Colorado initiative himself. Word is that at least a couple more Republicans are likely ready to join the group. And recent polls have found that more Americans favor letting states decide about legalization than even support legalization. Micah Cohen at the FiveThirtyEight blog noted the CBS poll found 49% of people who oppose legalization favor letting states decide.
In any case things are further along in Congress than before. The Frank-Paul bill to end federal marijuana prohibition, H.R. 2306, got a few Republicans, but the hard-line House Judiciary chair Lamar Smith (R-TX) would not allow hearings. (Smith was the only member of Congress to oppose crack sentencing reform -- our Judiciary Committee chair!) Incoming chair Bob Goodlatte (R-VA) is said to be reasonable on some issues, but not particularly positive on ours. Still, given what happened last month and what is happening now, it may just look a little too bad for Goodlatte to disallow even hearings, as Republicans struggle to redefine their profile in the wake of a tough election for them.
I haven't read Mikos's analysis yet, but the following excerpt gives a hint at what he might say tomorrow:
Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states' prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been -- and cannot be -- preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.
It's not surprising that a professor friendly to Cato would take a friendly view toward state legalization measures. But Mikos is not the only one. Just today on a phone conference I participated in, a former prosecutor told us that his community sees the courts preempting the state laws as a reach and less than likely, though some DOJ officials want to try for it.
Hutchinson may see things differently, but who knows, maybe we'll be surprised. Perhaps he will have interesting insights to offer on the likely federal response. Hutchinson is a rarity among DEA types in being willing to come out and debate, and he has been known to make reasonable statements about the issue on occasion, though I'm sure we still disagree on most aspects of drug policy.
Should be an interesting talk -- check back at the link for video if you can't come out for it. In the meanwhile, you can read some of my own thoughts on the preemption question here, and a discussion with experts in our newsletter here.
[T]he administration appears to have an open-and-shut case: Federal law trumps state law when the two contradict. What's more, the Supreme Court has spoken on marijuana law: In the 2005 case Gonzales v. Raich contesting medical marijuana in California, the court ruled that the federal government can regulate even tiny quantities of pot – including those grown and sold purely within state borders – because the drug is ultimately connected to interstate commerce. If the courts side with the administration, a judge could issue an immediate injunction blocking Washington and Colorado from regulating or taxing the growing and selling of pot – actions that would be considered trafficking under the Controlled Substances Act.
But a former Bush administration official quoted in the New York Times on Thursday, former DOJ civil division head Gregory Katsas, made the opposite prediction. Katsas was "skeptical" that a preemption lawsuit would succeed, according to the Times. Why? Perhaps because it's not just that the feds can't force states to criminalize drug possession, as Kevin Sabet selectively pointed out to Dickinson. It's also the case that they probably can't directly force the states to criminalize sales either. The Controlled Substances Act in fact leans against federal preemption of state drug policy, as pointed out in a law professors brief on preemption submitted in a California case this year.
Dickinson also pointed out that federal officials had used threats to prosecute state employees involved in implementing regulations for medical marijuana. In my opinion the US Attorney letters were deliberately vague -- scary enough to influence state officials, but in most if not all cases stopping short of explicitly making that threat. A better piece of evidence, I think, is that in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to actually invalidate such a law in court, not even after the Raich ruling. Why not? They must not think they have a slam dunk case. And if preemption is not a slam dunk for medical marijuana, then it's not a slam dunk when it comes to legalization either, although there are additional arguments to throw against full legalization.
The reality is that no one knows how this will turn out if it goes to court. Raich established that federal police agencies can use their powers in medical marijuana states to continue to criminalize marijuana federally, justified by the Interstate Commerce Clause. But that is not the same as having the power to forbid states from granting exceptions to the states' own anti-marijuana sales laws, which in legal terms is what the regulatory frameworks do, and plenty of smart lawyers are skeptical that they can do that. This is not a slam dunk either way.
We noted this morning that marijuana is now legal in Washington State. (!) But what happens next?
As WA press noted, federal authorities had no plans to intervene at this time -- the expected celebrations proceeded unmolested, at least we've not heard of any problems.
As one of our advisors, Eric Sterling, commented in our newsletter after the election, officials at the Dept. of Justice were taken by surprise, perhaps by the passage of the initiatives and certainly by the strong margins of victory. A New York Times story today by Jack Healy noted that the Obama administration has yet to announce any policy on the matter, but have simply noted that federal law remains unchanged. According to the article, officials asked about it referred to a statement released yesterday by the US Attorney in Seattle, Jenny Durkan:
"In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance," [Durkan] said. "Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law."
Which tells us nothing we didn't know. But Durkan did say that the administration is reviewing the initiatives. And according to Healy's article, "several people familiar with the [administration's] deliberations" say they are considering legal action. There are a few legal issues at stake:
- Can the government "preempt" the states' regulatory systems -- that is, not just raid marijuana stores if they choose to, but prevent the state from exempting any growers or distributors or sellers under state law?
- If they can, will that endanger the rest of the laws? The argument for that, Healy posits, would be that voters mightn't have passed the laws without the regulations.
- Do the state laws run afoul of our government's treaty obligations, particularly the 1961 Single Convention on Drugs?
Many scholars are skeptical that a preemption challenge would succeed. Gregory Katsas, a DOJ official in the George W. Bush administration, pointed out to the Times that there is nothing in the laws that prevent the federal government from bringing marijuana cases in the states. The argument there is that the laws are not in "positive conflict" with the federal Controlled Substances Act (CSA), despite their clear "tension" with it. Several legal scholars submitted a brief in a California case on this subject earlier this year taking that viewpoint.
My takeaway from the brief was that the feds might not be able to preempt even the regulatory portions of the laws, and would probably have to amend the CSA to have a chance. The very same law that would be invoked in a court case, is the same one at work in prohibition of medical marijuana. And in 16 years of state medical marijuana laws, including now 10 dispensary states, no federal prosecutor has sought to invalidate any of these laws in court. That suggests they are not confident of what their prospects would be.
Regarding the treaties, my guess would be that the same reasons federal law might not preempt state marijuana legalization applies to the treaties too -- marijuana is still federally illegal. The treaties do seem to frown even legalized possession. But they explicitly allow for alternatives to criminalizing possession, such as health and education-based approaches -- which we don't have as much of as we should, but which we do have. So it's not clear that the treaties will be a problem either.
All that said, we do not know what will happen, and Congress's power to regulate commerce is broad -- the pressure on the feds to do something is greater, and the set of arguments they can bring to court are more numerous.
I am excited but also anxious about what may happen next. Are Amendment 64 and I-502 going to federal court? What will the courts say? Will the feds try to scare Washington and Colorado officials from implementing regulations -- will the states' governors stand up to them if they do, or will they seek delays as happened in a number of medical marijuana states? Will the federal raids being made against medical marijuana facilities be expanded when legalized marijuana stories eventually open? Such a strategy would be more effective in Washington, less so in Colorado where there will be more stores and where home growing is legal. But they can probably take down anyone in Colorado as they choose. Will there be threats to withhold highway funds over the laws, or law enforcement funds?
Hopefully the Obama administration will finally choose to be on the right side of history on this issue. But we'll ses. What happens next? For now we wait -- I am nervous but also excited.
Tomorrow, December 6, 2012, possession of marijuana for persons 21 and over becomes legal in Washington State. There's a long way to go before marijuana prohibition finally lands in history's dustbin, much less overall drug prohibition. And of course we are anxiously waiting to see what the feds will do. On the other hand we've lived with marijuana prohibition for more than 75 years, compared with alcohol prohibition's 13 years, or drug prohibition's near century, so the week is certainly an historic one.
A big anniversary, and a big day. Stay tuned.