Skip to main content

Administration Gives States Okay on Marijuana Legalization [FEATURE]

Submitted by Phillip Smith on (Issue #799)

Attorney General Eric Holder told the governors of Colorado and Washington Thursday that the Justice Department would not -- at least for now -- block their states from implementing regimes to tax, regulate, and sell marijuana. The message was sent during a joint phone call early Thursday afternoon.

The Justice Department will take a "trust but verify" approach, a department official said. The department said it reserved the right to challenge the state legalization laws with a preemption lawsuit at a later date if necessary.

The go-ahead from Holder to the states was accompanied by a memorandum from Deputy US Attorney General James Cole to federal prosecutors laying out Justice Department concerns and priorities. If marijuana is going to be sold, the memo said, it must be tightly regulated.

"The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health and other law enforcement interests," the memo said. "A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice."

The memo listed a number of activities that could draw federal prosecutorial attention or result in a Justice Department reassessment, including sales to minors, profits going to criminal actors, diversion to pot prohibition states, marijuana sales as a cover for other drug sales, violence and the use of firearms, drugged driving and other "adverse public health consequences," and growing marijuana on public lands.

Attorney General Eric Holder (
That leaves some wiggle room for federal prosecutors, some of whom have shown a willingness to be quite aggressive in going after medical marijuana providers. But it also gives them a clear signal that legalization will, in general, be tolerated in states where voters have approved it.

In a first response from marijuana reform activists, Tom Angell of Marijuana Majority called the Justice Department's stance "a step in the right direction", but also blasted the administration for its aggressive enforcement activities against medical marijuana providers and warned that interpreting the new directive will be up to US attorneys.

"It's nice to hear that the Obama administration doesn't at this point intend to file a lawsuit to overturn the will of the voters in states that have opted to modernize their marijuana policies, but it remains to be seen how individual US attorneys will interpret the new guidance and whether they will continue their efforts to close down marijuana businesses that are operating in accordance with state law," Angell said.

"It's significant that US attorneys will no longer be able to use the size or profitability of a legal marijuana business to determine whether or not it should be a target for prosecution, but the guidelines seem to leave some leeway for the feds to continue making it hard for state-legal marijuana providers to do business," he continued.

Angell chided the administration for using cheap rhetoric about not busting pot smokers to obscure deeper issues of federal harassment of marijuana businesses.

"The administration's statement that it doesn't think busting individual users should be a priority remains meaningless, as it has never been a federal focus to go after people just for using small amounts of marijuana," he said. "The real question is whether the president will call off his federal agencies that have been on the attack and finally let legal marijuana businesses operate without harassment, or if he wants the DEA and prosecutors to keep intervening as they have throughout his presidency and thus continue forcing users to buy marijuana on the illegal market where much of the profits go to violent drug cartels and gangs."

The Marijuana Policy Project also reacted Thursday afternoon, saying it applauded the move.

"Today's announcement is a major and historic step toward ending marijuana prohibition. The Department of Justice's decision to allow implementation of the laws in Colorado and Washington is a clear signal that states are free to determine their own policies with respect to marijuana," said Dan Riffle, the group's director of federal policy.

"We applaud the Department of Justice and other federal agencies for its thoughtful approach and sensible decision," he added. "It is time for the federal government to start working with state officials to develop enforcement policies that respect state voters, as well as federal interests. The next step is for Congress to act. We need to fix our nation's broken marijuana laws and not just continue to work around them."

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Mad Hatter (not verified)

There was a time we asked for the law to change, now we are demanding it. Now they mock us with this memo? It is worded to allow them to keep doing what they are already doing. The fed's have become all powerful, they need to be reminded they work for us, vote the scum out and disband the DEA. IMO Remove Cannabis & Hemp from the Controlled Substance Schedule. Tax it's growth and sale. Business use Require a permit to grow more then 10 plants or sell any amount. Private use Can posses up to 1 Lbs in your home. Can grow up to 10 plants. Can posses on your person up to 1 once in public. Can donate Up to 1 once a time. All grow and sales must be to people 21 or older. ALL taxes/fee's should remain local to the county it was grown/sold in. NO FED TAX
Thu, 08/29/2013 - 7:10pm Permalink
Tony Aroma (not verified)


Has anybody actually read this memo?  If you do, you'll see that it says these are the same priorities that have always been in place. This new memo is just a reaffirmation of the previous memo. It’s only “guidance,” just as before, and their priorities haven’t really changed much. It refers to the previous memo throughout, and says over and over that nothing has changed: “These priorities will continue to guide the Department’s enforcement of the CSA.”

So where are people getting the idea that this is something new? It sounds to me like more of the same. Prosecutors can, and will, continue to do as they please. This is just another pass-the-buck non-response.

And it says nothing about medical states, so the assumption is nothing changes there either.

Thu, 08/29/2013 - 8:17pm Permalink
borden (not verified)

In reply to by Tony Aroma (not verified)

Tony, it says "all states," and it refers to "civil enforcement."

It also explicitly discusses the need for effective regulation. Acknowledging regulation, and its benefits, is a big shift.

It's true that they'll be able to drive a few trucks through the memo, if that's what they really want to do. But the memo looks qualitatively different to me from previous memos, and is further along than them. They could have gotten away with saying a lot less than they did.

It also comes just a few weeks after their announcement on restricting the use of mandatory minimums. Together with that it looks to me like the claims of some anonymous officials last year and before of Obama planning a second-term emphasis on criminal justice reform were true. But that of course doesn't tell us how far it will go.

Thu, 08/29/2013 - 8:51pm Permalink
Uncle Bob (not verified)

In reply to by borden (not verified)

At the very least, it shows the government is acknowledging the argument, even if they aren't agreeing with it.  That alone indicates a paradigm shift.  I hope soon the government will stop using sarcastic quotation marks around the world 'medical' in their official doctrine wherever the term medical marijuana pops up.  

Thu, 08/29/2013 - 10:04pm Permalink
kickback (not verified)

A lot of Federal Prosecutors would not be in their current job were it not for " drug cartels " . They have a vested interest in keeping this prohibition racket going . Their next vacation depends on it . Legal Cannabis in the USA would be of better quality than the stuff coming up out of Mexico . Who would need that crap smoke anymore ? As noted in article above , Congress needs to do its job and make sure that Federal Cannabis laws reflect modern day reality . 

Thu, 08/29/2013 - 10:57pm Permalink
drmaddogs (not verified)

Please, Sir, Can I Have Some More? is what I hear from those seeming to believe there is even a modicum of 'change' in this memo. Obama/Holder campaigned on possible change based on 'discussion' and this is what you got for your vote... a memo!!??

Five years and a MEMO??? Expect another five years? Face it folks, its a delay game, keeping tax dollars funding, NIDA through the ONDCP and Presidential Election Campaign Fund management to those running for the position of Potus. There is no 'Spoon', there is no "shift", there will always and only be change at the behest of the voter.

Till the voter changes the policy, 'gruel', 'promises' and memos is what the public receives as the administration complies with policy promises that availed backing by the drug war participants that are tax funded.

Why ANYONE, would take a lawyers memo as an indication change would happen without expressed force of the power of the vote is beyond me. Ask for more 'Gruel' and expect the best you'll receive is more gruel.

Fri, 08/30/2013 - 7:28am Permalink
borden (not verified)

In reply to by drmaddogs (not verified)

Changing the law requires a vote of Congress. A policy change is about the limit of what the Justice Department can do. Memos are a part of the mechanism by which policy changes are made.

Obama could change at least part of the law with respect to medical marijuana, so he is still at fault there. But this isn't the case with outright legalization.

And, they've now sent two memos within just a few weeks, this one and the mandatory minimums memo. This looks like a direction to me.

Fri, 08/30/2013 - 4:17pm Permalink
Jules (not verified)

In reply to by borden (not verified)

No law change is required. The President of the United States is granted the right to reschedule any drug by the CSA. The CSA doesn't even require him/her to give a reason or prove necessity for the change. For all intents and purposes: Obama could wake up tomorrow at 6 am, finish his coffee and cruller by 7 am, send a memo and have cannabis rescheduled from I to III by 8 am and be off to buy burgers and beer for a cookout before 9 am. The entire war on cannabis could be completely over and finished before 9 am, any day of the week; by one man. 


Again, Congress is not required to participate in any way what so ever. It is one of the myths the government has been very happy to perpetuate. If people believe it will take an act of congress to change the legality of a drug they will not fault the President because he is "trying his hardest in a situation that is an extremely difficult uphill battle against a Congress that isn't willing to even work intra-partisan much less bipartisan on a subject that is highly controversial." So everyone can go on being unhappy about the current situation unaware that what they wish to achieve is completely achievable by one man and he simply refuses to do it because it would make a lot of his fellow cohorts, ie the people who will hire him after he's done being President, very angry and slightly less obscenely rich.


People also forget that there is not a federal regulatory scheme for alcohol in the sense that most people see a regulatory system (Legalization as most people refer to it). There is no federal drinking age. Any state can remove their drinking age requirement. There is a federal law stating that any state with a drinking age below 21 will get less aid money for highways but that is not a regulatory system, it's coercion. And, trust me, the minute it gets rescheduled the first thing they'll do is pass a law to tax it. The second will be considering a way to coerce the states into a legal age limit that will ensure if the states refuse they will loose aid money. Actually, this is being to optimistic considering the first will most likely be attempting to meet with lobbyist for this new industry in an attempt to see how much money they can personally make from this change in policy but I like to give the benefit of the doubt and only refer to the actions congress does legally and inside their chambers.

So, essentially, all that needs to be done can by done by one man who refuses to do it because he care's more about political games then what is best for a country and it's people.


Happy Labor Day!

Mon, 09/02/2013 - 3:25pm Permalink
borden (not verified)

In reply to by Jules (not verified)

Jules, schedule III, or for that matter even schedule V, is still illegal for non-medical use, any use without a prescription. It would have lower penalties than schedule I does for non-prescription use, but it's not legalization as this article and the memo address.

But happy Labor Day to you too.

Thu, 09/05/2013 - 12:58am Permalink
Giordano (not verified)

The memo demands we trust a system of law so corrupt it pops citizens for weed while American banksters and torturers get a free ride. 

By what legitimacy does the government claim dominion over public health when it’s spent the last 75 years warring against one of the most effective and useful medications on the planet?  That plus prohibiting hemp should get the U.S. attorneys a padded cell instead of a pension.  The so-called Justice Department can’t change the laws, it can only ignore them.  So what’s the DEA-man going to do when there’s nothing to do anymore?  He’s going to take his warped sense of reality and do what he’s always done: screw things up by arresting somebody.

If Congress doesn’t rescue the judiciary soon by remediating its prohibition problem, the 2014 elections will become a shitstorm of public grief and voter retribution aimed at every self-serving politician in America. 

Fri, 08/30/2013 - 1:14pm Permalink
Matt B (not verified)

One of the most important steps moving forward is for CO and WA to advertise and establish "proper cannabis etiquette". Why? The Feds will jump at any chance to keep the Drug War fires burning. They are masters of psychological warfare who will search for any video of any dumbass flaunting their weed.

Advertisements of people behaving normally on cannabis, (at least not as they do on dumb drug war ads) will continue to chip away at one of the drug warriors' most precious weapons: the "stoner stereotype".

I give 100% of the credit to We, the People, and 0% credit to the government. We put them in this position. They know it'll be worse right now if they go after the states. Keep that in mind. BEHAVE!

Fri, 08/30/2013 - 2:51pm Permalink
mexweeds (not verified)

In reply to by Matt B (not verified)

Matt B has brought up an important point-- assuming under "etiquette" we can group the technical issues of how the herb is inhaled-- (A) in H-ot B-urning O-verdose M-onoxide rolling papers or (B) in a vaporizer or 25-mg-per-lightup one-hitter.  The "stoner stereotype" is perpetrated by the successful conspiracy of the $igarette corporations to make all herbal inhalant use conform to their high-profit $igarette format-- a drug cocktail of carbon monoxide, heat shock and 4221 combustion toxins, which when used with cannabis produces "stoner" symptoms blamed on the cannabis.  Their power in the media is shown by the majority of cannabis-related news stories where a rolling-paper "joint" is shown instead of dosage moderation equipment. 

The Fed has a conflict of interest-- it wants to make sure cannabis doesn't harm health and safety, but it is in bed with the tobacco companies and must go along with their preference and not attack the worst single cause of disease, death and deforestation in human history, the $igarette format.

CO and WA should ask all dispensaries to offer for sale, or give away with purchase of cannabis, at least a cheap long-stemmed one-hitter and maybe a pen-vape or a plug-in vaporizer.

Sun, 09/01/2013 - 6:02pm Permalink
Steve Newcomb (not verified)

The prohibitionists should sue, and in their brief they should cite the Supreme Court's upholding of an interpretation of the Commerce Clause that permits the Federal Government to regulate products created for personal in-state use just as if they were involved in interstate commerce (even wheat, the product that was the subject of the case that created the precedent).  That horrible precedent can't be ignored just because some states have now said otherwise with respect to some product, such as cannabis.  However, it *can* be *voided* by due process of law.

This memo is a case of de-facto legislation by the Executive, a situation that no one who loves the U.S. Constitution -- the great and enduring separation-of-powers hack that our Founders pasted together as best they could -- should willingly tolerate.  The question hinges not only on the authority presumably reserved unto the States by the Constitution, but also on that most fundamental of American values, namely, freedom of religion.  Washington, Jefferson, Adams, Madison, Hamilton, and Franklin all would have bitterly opposed the interpretation of the Commerce Clause on which the entire apparatus of federal drug law now depends.

The question of "Who has authority over local business activities?" has even broader scope when considered in light of globalization.  Are nation-state sovereign, any more, in any meaningful way?  Or are the true sovereigns those who exercise regulatory power over international finance?  Ask the Greeks, the Mexicans, the Irish, the Icelanders, the Cypriots etc. about their feelings about their sovereignty.  Americans are still in denial about this.  They think they are in control, even though their representative government is paralyzed by money, and the President -- the country's top cop -- is now very openly choosing which laws to uphold, which to ignore, and which local laws to allow to stand, and which to ignore, all without *any* due process.  It's ominous.

So let the prohibitionists now bring suit against Holder et al.  The boil on the Commerce Clause has needed lancing for many decades, and there's no time like the present to apply due process to it, even if the stench of the outpouring of pus will be truly horrendous.   And it *will* be horrendous, as Ed Snowden's revelations, among others, continue to indicate.  Those revelations are small involuntary leaks of horrible-smelling pus.  The longer the public's denial of the truth continues, the worse it will be when the pus can no longer be contained. 

We can be absolutely certain that *nobody* wants the U.S. to become a failed state -- a body politic that leaks noxious pus uncontrollably -- but that's the direction we're moving when we fail to uphold the rule of law.  To concentrate power is to concentrate corruption.  Due process, on the other hand, *distributes* power, so that *local* corruptions can be defeated, one at a time.  Let's return to the rule of law.  Let the prohibitionists have their day in court.  Let the pus pour out.  (And let's clean up the ensuing mess.)  Afterwards, our chills and fever will subside.  We'll all feel better.  And we'll be a lot safer, too.

Thu, 09/05/2013 - 1:48pm Permalink
Jane Adams (not verified)

Humboldtean here, and I completely agree with this. Maybe because I don't grow, and don't know what it's like to risk losing that money. Probably about 2/3 of the people I interact with up here grow and I don't even know it. According to the growers I have talked to, part of their reasoning is that marijuana is a natural plant from the ground and to have the government control it would be akin to settlers buying land from Native Americans who believed that the land was a gift and could not be sold. Does that make sense? That's what they told me, anyway.

In all seriousness, the plant really is a major staple of this community. You come over and smoke someone's weed, you offer a nug in trade before you leave. Know somebody that can't afford it at the moment? People will jump to help them out and donate a little free nug or two. It's an extremely rare thing to walk into a house that doesn't have paraphernalia sitting on the coffee table, and it's almost rude not to offer a smoke when you have company. In some parts, it's practically an acceptable form of payment with people. To all of these people who have this mindset, letting the government control weed is the antithesis of what the plant is about.

Thu, 12/19/2013 - 7:32am Permalink

Add new comment

The content of this field is kept private and will not be shown publicly.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.