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.
More fundamental, however, is the fact that marijuana remains a prohibited substance under federal law and, regardless of criminal and civil enforcement by the Justice Department, there remain serious consequences for those who produce, sell, or consume the drug even in those states where such conduct is “legal.” Those engaging in this conduct remain at risk of losing their child custody, employment, housing, or federal benefits if their involvement with marijuana comes to light. Until such time as the federal prohibition is undone, in other words, states will remain limited in the extent to which they can truly legalize marijuana.