by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law, San Diego. Kreit is author of the casebook, Controlled Substances: Crime, Regulation, and Policy and the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”
Yesterday, after months of anticipation, the Department of Justice announced its response to marijuana legalization ballot measures passed by voters in Washington and Colorado last November. The DOJ said it does not plan to sue Washington and Colorado to block the new laws. The agency also released new prosecutorial guidance that indicates it may limit the enforcement of federal drug laws in states that have legalized marijuana for recreational or medical purposes.
If you felt a sense of déjà vu reading that paragraph, there’s a good reason.
In 2009, The New York Times ran a front-page article about a different DOJ memo under the headline U.S. Won’t Prosecute in States That Allow Medical Marijuana. The 2009 Times article reported that “[p]eople who use marijuana for medical purposes and those who distribute it to them should not face federal prosecution, provided they act according to state law, the Justice Department said Monday in a directive with far-reaching political and legal implications.”
By early 2012, however, Rolling Stone ran a story titled Obama’s War on Pot in which writer Tim Dickinson forlornly told the story of how “over the past year, the Obama administration ha[d] quietly unleashed a multiagency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush.”
Will the DOJ’s new marijuana policy live up to the hype? Or, will we see a replay of what happened following the 2009 memo? Policy advocates seem to be split so far, with some calling it a historic turning point for U.S. drug policy and others taking a wait-and-see approach.
Only time will provide a definitive answer to this question. But comparing yesterday’s memo with 2009’s can help us understand what to watch for in the months to come. A few points are worth particular attention.