Deja Vu on DOJ's Marijuana Policy?

August 30, 2013
Guest Post

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.

First, the DOJ has now stated in pretty clear terms that it does not plan to sue Colorado or Washington (although the memo leaves the door open “[i]f state enforcement efforts are not sufficiently robust”).  This allows state government officials to breathe a small sigh of relief.  This aspect of the policy also led many of the news reports.  But, it isn’t particularly surprising.  After all, the DOJ has never sued any of the states with medical marijuana laws.  Moreover, the argument that the laws themselves are preempted isn’t particularly strong.  In other words, close observers have always viewed a preemption lawsuit against Colorado or Washington as a real long shot.  The DOJ’s confirmation that it won’t pursue one is news, but not particularly earth shattering.

Second, the new guidelines tell prosecutors not to consider “the size or commercial nature of a marijuana operation alone” when enforcing federal marijuana laws in states that have legalized.  For marijuana growers and sellers operating in compliance with state laws, this is probably the most encouraging part of the new policy.  It is also the biggest question mark.  Federal prosecutors interpreted the 2009 memo to apply only to individual patients and caregivers.  As a result, medical marijuana dispensaries were still fair game.

If local prosecutors conscientiously follow this new guidance, it means that marijuana businesses operating in compliance with state laws should not have to fear federal prosecution.  This would be a truly significant development.

Third, and closely related to point number two, the new policy appears to leave prosecutors with as much discretion as they had under the old policy.  This is the part of the policy that skeptics have their eyes on.  An anonymous DOJ official told the Huffington Post that the new guidance is “not optional” for prosecutors.  But if there is any enforcement mechanism for ensuring local prosecutors and DEA agents comply, it does not appear in the memo itself.

Indeed, the last paragraph of the yesterday’s memo reads very much like the last few paragraphs of the 2009 memo.  It emphasizes that the policy “is intended solely as a guide to the exercise of investigative and prosecutorial discretion”; that it “does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law”; and that it does not provide a legal defense in federal court.

In sum, the new policy all comes down to implementation.  If the DOJ diligently oversees local prosecutors and doesn’t cede interpretation of enforcement guidelines to DEA Director and reefer-madness-throwback Michelle Leonhart, it may be a truly revolutionary change in U.S. drug policy.  If not, federal marijuana enforcement may look no different a year from now than it did before the announcement.

As an optimist, I’m sincerely hopeful this memo reflects a real policy change.  But as someone who closely watched the events that followed the DOJ’s 2009 medical marijuana memo, I’m reminded of the famous Bushism: “Fool me once, shame on you.  Fool me—can’t get fooled again.”