Colorado

  • September 3, 2013
    Guest Post

    by Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, University of Denver Strum College of Law

    The Department of Justice recently announced how it would enforce federal marijuana law in those states seeking to legalize marijuana under their own laws. In a memo to United States Attorneys around the country, Deputy Attorney General James Cole set out the priorities that govern the federal government’s enforcement of the Controlled Substances Act’s (CSA) marijuana prohibition. The government, Cole wrote, was primarily concerned with the distribution of marijuana to minors, the involvement in marijuana trafficking of organized crime, the distribution of more serious drugs along with marijuana, and the transfer of marijuana from states where the drug was legal under state law to those where it was not.  So long as those states seeking to legalize marijuana had robust regulatory regimes in place to address these concerns, businesses acting in conformance with state law would generally not be an appropriate target of federal enforcement, whether criminal or civil.

    The DOJ memo marks a major change in direction for the federal government. As recently as 2010, Attorney General Holder had made clear to the people of California that the federal government would not countenance a state decriminalizing and regulating recreational marijuana manufacture and sale. Furthermore, previous enforcement memoranda from the DOJ had drawn a distinction between legitimate medical use of marijuana on the one hand (which the government stated would not be an enforcement priority) and large-scale commercial production (which remained a valid target for federal prosecution). The 2013 Cole Memo makes clear that the size and for-profit nature of marijuana establishments was but one factor to be considered by United States Attorneys in determining whether to enforce the CSA in states that had sought to legalize marijuana. 

    For state officials in Washington and Colorado – which both passed marijuana legalization initiatives in 2012 – this word from the DOJ was long-overdue good news; with this announcement, the states could complete the final stages of their marijuana regulations and begin licensing businesses to open their doors in early 2014.

    But the memo can do only so much to alleviate the uncertainty and confusion caused by the continuing federal marijuana prohibition. In the first place, the memorandum is a unilateral act of the executive and can always be undone by other unilateral executive actions; when a new presidential administration takes over in January 2017, there is no telling how it will view the federal government’s marijuana enforcement priorities. 

  • December 12, 2012

    by Jeremy Leaming

    If the Obama administration decides to move aggressively to scuttle efforts in Colorado and Washington State to take a different – many would say progressive – approach to the war on marijuana it won’t be because the administration had no alternative. Indeed plenty of academics, pundits and federal lawmakers are hoping the administration will support, not hinder, the experimentations in those two progressive Western states and are airing plenty of ways the administration could respond.

    University of Denver law school professor Sam Kamin detailed some of the possibilities the government could take with respect to the marijuana legalization initiatives that passed with strong support in Colorado and Washington. One of the possibilities Kamin highlighted was a bill recently introduced by Rep. Diana DeGette (D-Colo.) “allowing states to essentially opt of the CSA [Controlled Substances Act outlaws marijuana and is administrated by the Drug Enforcement Agency] enforcement by passing laws that conflict with the federal prohibition ….”

    Rep. DeGette in a press statement announcing the legislation said several of her colleagues were concerned “about the federal government’s ability to override these voter-approved initiatives ….”

    “In Colorado,” DeGette said, “we’ve witnessed the aggressive policies of the federal government in their treatment of legal medicinal marijuana providers. My constituents have spoken and I don’t want the federal government denying money to Colorado or taking punitive steps that would undermine the will of our citizens.”

    In a piece for Rolling Stone, Tim Dickinson writes that while the federal government “cannot force” Colorado and Washington “to impose criminal sanctions on pot possession,” the federal government “has great power” to block the states’ abilities to tax and regulate the sale of marijuana. (In an editorial, the magazine’s publisher Jann S. Wenner hopes the president won’t tap that power and urges an end to the war on weed calling it a “sham, a folly, a colossal waste of money and human potential.”)

  • December 7, 2012

    by Jeremy Leaming

    The Obama administration may be on the verge of irking large swaths of its supporters by employing scarce Justice Department resources to go after users of small amounts of marijuana in Colorado and Washington, where voters, by comfortable margins, voted to legalize limited amounts of possession.

    The New York Times’ Charlie Savage reports that senior officials in the administration “are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.” Savage goes on to describe some of the possibilities the administration could take – sue the states arguing that federal law trumps state action in this area. (The Controlled Substances Act prohibits sale and possession of marijuana.) The Justice Department wouldn’t talk to Savage about administration plans on the matter, but did highlight a statement issued recently by the U.S. Attorney in Seattle, stating that marijuana remained illegal pursuant to the CSA.

    Andrew Sullivan notes that Pete Guither views the Savage piece as a trial balloon “to see what kinds of reactions there are and what political fallout might come from action … or inaction."

    Sullivan obliges, writing that if administration officials decide “to treat the law-abiding citizens of Colorado and Washington as dangerous felons; if they decide to allocate their precious law enforcement powers to persecuting and arresting people for following a state law that they have themselves just passed by clear majorities; if they decide that opposing a near majority of Americans in continuing to prosecute the drug war on marijuana, even when the core of their own supporters want an end to Prohibition, and when that Prohibition makes no sense … then we will give them hell.”

  • November 27, 2012

    by Jeremy Leaming

    Taking the “bolder step” of legalizing a limited amount of marijuana has sparked other state lawmakers to consider similar measures, even as the Obama administration remains silent on how it will respond to the bold measures passed in Colorado and Washington.

    University of Denver law school professor Sam Kamin covers possibilities the administration could take, such as enforcing the Controlled Substances Act, which bans the sale and possession of marijuana. Another possibility, Kamin added, is to reclassify marijuana or remove it from the CSA.

    In a piece for The New York Times online commentary, Timothy Egan hopes the administration will have “the backbone” to embrace change. He also urges policymakers and pundits to dump the lame talk about the munchies and take seriously the message sent by two “progressive Western states” that “arresting 853,000 people a year for marijuana offenses is an insult to a country built on individual freedom ….” He also notes that other states, such as Maine, are likely to follow those Western states. Indeed Egan believes that it is likely “a dozen or more states will do so as well.”

    And why should the Obama administration embrace a societal change? Egan cites a litany of compelling reasons. For starters its base hypocrisy for the government to tolerate legal drugs – alcohol, caffeine and a slew of supplementary vitamins that make all kinds of “exaggerated health claims” -- but continue to arrest people for marijuana use.

  • November 14, 2012
    Guest Post

    By Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, Sturm College of Law, University of Denver


    With the passage of marijuana legalization initiatives in Washington and Colorado, the long-simmering cold war between state and federal marijuana policy threatens to break out into open hostilities. While eighteen states plus the District of Columbia now permit marijuana for medical purposes, only Washington and Colorado have taken the bolder step of both repealing entirely their marijuana prohibitions for small amounts of the drug and requiring their state legislatures to begin regulating a retail, recreational marijuana industry by the end of 2013.

    Everything now depends on the response of the federal government. Notwithstanding changing policy in the states, marijuana remains on the DEA’s list of Schedule I narcotics, those drugs whose manufacture and sale are strictly prohibited. Thus, every transaction in every medical marijuana state throughout the country constitutes a federal crime. The Justice Department has grudgingly accepted the medical marijuana industry thus far; while there have been some federal raids on these businesses, they have generally been permitted to operate, notwithstanding their open flouting of the Controlled Substances Act (CSA).

    In 2010, when the state of California considered Proposition 19 which would have legalized marijuana for recreational purposes U.S. Attorney General Eric Holder issued voters in that state a strong warning. He made clear that the federal government would “vigorously enforce” the provisions of the CSA in the state if voters passed the Proposition. After having an early lead in polls, the measure eventually lost.