Justice Department Won’t Challenge Marijuana Laws in Colorado, Washington

Daily News Article — Posted on September 4, 2013

doj (by Brent Kendall and Joel Millman, The Wall Street Journal) – The Obama administration said Thursday it wouldn’t challenge state laws in Colorado and Washington that allow recreational marijuana use, in the latest victory for the movement to decriminalize the drug.

The decision clears the way for the states to move ahead in implementing their laws and limits the vulnerability of marijuana dealers there to federal prosecution, so long as they comply with state regulations. …

Critics said the move would lead to increased marijuana abuse and harm to pot users. “I see it as a tsunami in the works,” said Calvina Fay, executive director of the Drug Free America Foundation.

In November, voters in Colorado and Washington made their states the first in the nation to permit the use of recreational marijuana. Those two states, plus 18 others and the District of Columbia, permit it for medicinal purposes.

Washington expects to issue licenses to pot retailers as soon as December. Colorado sales are scheduled to start in January.

The U.S. has been working through contradictions in pot laws since the 1990s, when medicinal marijuana was approved in several states. The federal Controlled Substances Act makes selling pot illegal, but the Clinton, Bush and Obama administrations avoided seeking the nullification of state laws in court. Thursday’s move by the Obama administration extends that policy to state recreational-use laws.

Both supporters and opponents of relaxing marijuana laws noted that the Justice Department move opens the door to more states following Colorado and Washington’s lead.

U.S. Attorney General Eric Holder

In a conference call, Attorney General Eric Holder told governors of both states that the Justice Department reserved the right to challenge the states’ laws later if U.S. officials find that the states didn’t put appropriate regulatory controls in place, a department official said.

Colorado Gov. John Hickenlooper, a Democrat, said the Justice Department’s decision “shows the federal government is respecting the will of Colorado voters.” He said state officials would block pot access to those under 21 years old and work to prevent marijuana businesses from serving as fronts for criminal enterprises.

Washington Gov. Jay Inslee and state Attorney General Bob Ferguson, both Democrats, said they shared the federal government’s enforcement priorities. They said Mr. Holder expressed a willingness to work with the states on a financial structure that wouldn’t run afoul of federal law. Entrepreneurs expressing interest in marijuana businesses have voiced concern that federal regulators would deter banks from lending to them or prosecute securities firms issuing shares in pot companies.

Sen. Chuck Grassley (R., Iowa), co-chairman of the Senate Caucus on International Narcotics Control, said the move “sends the wrong message to both law enforcement and violators of federal law. Apprehending and prosecuting illegal drug traffickers should always be a priority for the Department of Justice.”

In a memo to federal prosecutors Thursday, the Justice Department stressed a point Mr. Holder has made in previous years – that authorities should focus enforcement on major criminal activity, such as the use of marijuana sales as a cover for drug trafficking. The department has previously said it generally doesn’t focus on people who possess small amounts of pot for personal use.

The memo noted a large-scale marijuana business shouldn’t be viewed as a target for prosecution just because of its size, provided it is “demonstrably in compliance” with state laws.

Attention in Washington and Colorado now turns to specific regulations for producing and selling recreational pot. Washington state’s Liquor Control Board has spent this year working on rules, and next month the state will begin accepting license applications from growers and retailers.

The state hasn’t yet determined how many retail locations it will permit. The Liquor Control Board has advised potential applicants that individual cities and towns retain the right to zone out marijuana entrepreneurs at their own discretion.

In Colorado, the state Department of Revenue is scheduled to finalize rules by October that would govern pot sales. Additionally, a statewide vote is set for November about whether to impose a higher tax on pot sales.

—Nathan Koppel contributed to this article.

Background

THE CONTROLLED SUBSTANCE ACT OF 1970:

--The Controlled Substances Act (CSA), passed by the Congress as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is the federal U.S. drug policy under which the manufacture, importation, possession, use and distribution of certain substances is regulated.

--This law brings together a number of laws regulating the manufacture and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and chemicals used in the illicit production of controlled substances. All substances are placed in one of five schedules, based on medicinal value (currently accepted medical use in treatment in the United States), harmfulness, and potential for abuse (an undefined term) or addiction, as well as international treaties, with Schedule 1 reserved for the most dangerous drugs that have no recognized medical use.

--Two federal agencies, the Drug Enforcement Administration and the Food and Drug Administration, determine which substances are added to or removed from the various schedules.

--Schedule I substances (which include heroin, LSD and marijuana) are those that have the following findings:

The drug or other substance has a high potential for abuse.
The drug or other substance has no currently accepted medical use in treatment in the United States.
There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Under the DEA's interpretation of the CSA, a drug does not necessarily have to have the same "high potential for abuse" as heroin, for example, to merit placement in Schedule I: The Drug Enforcement Agency, in a "Notice of denial of petition to reschedule marijuana" in 2001 wrote:

[W]hen it comes to a drug that is currently listed in schedule I, if it is undisputed that such drug has no currently accepted medical use in treatment in the United States and a lack of accepted safety for use under medical supervision, and it is further undisputed that the drug has at least some potential for abuse sufficient to warrant control under the CSA, the drug must remain in schedule I. In such circumstances, placement of the drug in schedules II through V would conflict with the CSA since such drug would not meet the criterion of "a currently accepted medical use in treatment in the United States." 21 USC 812(b).

Ballot measures in several states such as Colorado, Washington, Massachusetts and others have made allowances for recreational and medical use of marijuana and/or have decriminalized possession of small amounts of marijuana - such measures operate only on state laws, and have no effect on Federal law. Marijuana remains on Schedule I of the Federal law, effective across all U.S. states and territories. (excerpted from wikipedia)

THE U.S. JUSTICE DEPARTMENT:

The United States Department of Justice (often referred to as the Justice Departmentor DOJ), is the U.S. federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries. The Department is led by the Attorney General, who is nominated by the President and confirmed by the Senate and is a member of the Cabinet. The current Attorney General is Eric Holder. (from wikipedia)

ATTORNEY GENERAL: (from the Department of Justice website justice.gov/ag/about-oag.html and wikipedia)

The Attorney General is the head of the Department of Justice and chief law enforcement officer of the Federal Government.
The attorney general serves as a member of the president’s cabinet, and is the only cabinet department head who is not given the title secretary.
The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested.
The Department of Justice is an executive department of the government of the United States.
The Attorney General guides the world’s largest law office and the central agency for enforcement of federal laws.
The attorney general is nominated by the President of the United States and takes office after confirmation by the U.S. Senate. He or she serves at the pleasure of the president and can be removed by the president at any time; the attorney general is also subject to impeachment by the House of Representatives and trial in the Senate for “treason, bribery, and other high crimes and misdemeanors.”