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HUGE: Administration to Allow State Marijuana Legalization to Proceed

Dept. of Justice building, Washington, DC (
Deputy Attorney General James Cole has issued "guidance" to federal prosecutors with respect to the state marijuana laws. The memo is online here. The press release is here.

Though it refers to regulatory legalization, as is happening in Colorado and Washington, the memo indicates that the guidance is for "all states." It additionally includes "civil enforcement," which would seem to go beyond criminal prosecutions and investigations to include problems like forfeiture threats directed at landlords and so forth. As a DOJ memo it would not constrain IRS audits of dispensaries.

There is plenty of wriggle room for prosecutors to target people, if that's what Cole and Holder and Obama intend. But at a first glance at least, it looks to me like the memo is seeking to allow Colorado and Washington to proceed with marijuana legalization, and that it may help ease things up in the medical marijuana states as well.

Phil will be posting a Chronicle story momentarily.

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Absolutely False Headline!


If you read the memo, 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.

borden's picture

Tony, it says "all states,"

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.

Borden, Read The Last Paragraph

Borden, read the last paragraph of the memo if you have any question about how binding these so-called new "guidelines" really are.  See especially the last sentence: "Nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above..."  In other words, it's almost an exact duplicate of the Ogden memo, leaving the final decision on who to go after to local prosecutors.  And we know how that turned out.

borden's picture

Of course it isn't binding,

Of course it isn't binding, but these things never are, in the absence of legislation from Congress. That's not the way the Dept. of Justice works. It nevertheless has huge differences from the Ogden memo. If nothing else, it gives the green light to the states to continue setting up their regulatory systems and licensing stores, which is enormous. Along with that, it implicitly endorses the idea of regulation, which is also enormous. There's nothing misleading about our headline. You're just focusing on limited aspects of this and missing the big picture of what just happened.

It's Happening Already

There's already a federal prosecutor in WA saying the state's medical marijuana regulations are inadequate to satisfy those 8 criteria, so he will continue to enforce the CSA as he has been.  In other words, we have a federal prosecutor saying this memo changes nothing and will have no effect on what he does.  That didn't take very long.

borden's picture

I saw that. But the

I saw that. But the prosecutor didn't say that about the pending legalization system; she said that about the medical marijuana system. If the legalization system is successful, that will help patients too.

Yes, there's going to be a lot more injustice committed by the likes of prosecutors, before this is all done. But likening that to "changing nothing" is just inaccurate. Reality is that the world proceeds in partial steps most of the time, whether we like it or not.

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