CO Reps to Introduce Bill on Marijuana to Protect Amendment 64

While Colorado Governor John Hickenlooper and state Attorney General John Suthers make telephone calls to DOJ, three of our Congresspersons are taking action instead of waiting for answers from the Justice Department on Colorado's newly passed Amendment 64. (Amendment 64 legalizes adult possession of small amounts of marijuana, creates a regulatory scheme to license growers and retail outlets and imposes excise taxes on wholesale sales. The text is here.)

Rep. Diana DeGette says she is putting the final touches on a bill that would amend the preemption section of the federal drug law to add a clause that excludes state marijuana laws. The Denver Post, in an editorial, applauds her for taking action and for urging the Justice Department to "show restraint." Reps. Jared Polis and Ed Perlmutter are also working, with DeGette and independently, on federal bills that would allow Amendment 64 to proceed, rather than waiting for an answer from D.O.J. [More...]

Rep. Perlmutter's spokeswoman told the Colorado Independent:[More...]

“Ed feels it is important to align state and federal laws whenever possible and he has been working on this for weeks,” said Perlmutter Spokesperson Leslie Oliver. “When state and federal laws conflict on marijuana, Ed thinks states should get a waiver....“There are a lot of people in Congress who think that states should be able to decide such things for themselves,”

21 U.S.C. 903 provides:

"No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together."

Gov. Hickenlooper and AG Suthers need to take a cue from Degette, Perlmutter and Polis. Instead of asking what DOJ intends to do, and sitting back while it makes up its mind, they should be telling DOJ they expect cooperation, and that any attempts at obstruction will be vigorously opposed. They should tell DOJ it can provide input on the drafting of regulations or get left behind. What they told DOJ on Friday does not send the right message:

"They emphasized the need for the federal government to articulate what its position will be related to Amendment 64," Hickenlooper's spokesman, Eric Brown, said in a statement. "Everyone shared a sense of urgency and agreed to continue talking about the issue."

The case Hickenlooper and Suthers should be making to DOJ: It is true that in listing marijuana as a Schedule I controlled substance, Congress decided that marijuana has no recognized medical use and imposed a blanket federal prohibition on the use of marijuana. However, Congress did not – and cannot – require states to enact their own criminal drug laws or make different decisions about the appropriate use of marijuana. Nor can Congress require states to enforce federal criminal laws. So it really boils down to a question of federal enforcement priorities.

Deputy Attorney General James Cole, as reported recently by '60 Minutes' expressed DOJ’s interest in medical marijuana this way:

Our focus is really on keeping it away from children. Our focus is keeping it out of the hands of organized crime. Our focus is making sure that people aren't, through marijuana dispensaries, using it as a pretext to do large-scale interstate drug dealing. These are the areas where we're really trying to focus.

The focus should be the same for recreational adult use of marijuana. In that regard, Amendment 64's regulatory scheme of strict licensing and financial reporting and monitoring should be viewed as furthering, not frustrating, DOJ's priorities and interests.

This also fits with the U.S. Attorneys Manual, Section 9-227, “Principles of Federal Prosecution.”

Federal Law Enforcement Priorities. Federal law enforcement resources and Federal judicial resources are not sufficient to permit prosecution of every alleged offense over which Federal jurisdiction exists.

Accordingly, in the interest of allocating its limited resources so as to achieve an effective nationwide law enforcement program, from time to time the Department establishes national investigative and prosecutorial priorities. These priorities are designed to focus Federal law enforcement efforts on those matters within the Federal jurisdiction that are most deserving of Federal attention and are most likely to be handled effectively at the Federal level. In addition, individual United States Attorneys may establish their own priorities, within the national priorities, in order to concentrate their resources on problems of particular local or regional significance.

In weighing the Federal interest in a particular prosecution, the attorney for the government should give careful consideration to the extent to which prosecution would accord with established priorities.....

Section 9-227 then lists factors to be considered in determining whether there is a substantial federal interest in prosecuting an offense. The first is the nature and seriousness of the offense. One of the considerations in this regard is the impact of the offense on the community, which in turn calls for a consideration of how the offense is viewed in the community.

Nature and Seriousness of Offense. It is important that limited Federal resources not be wasted in prosecuting inconsequential cases or cases in which the violation is only technical. Thus, in determining whether a substantial Federal interest exists that requires prosecution, the attorney for the government should consider the nature and seriousness of the offense involved. A number of factors may be relevant. One factor that is obviously of primary importance is the actual or potential impact of the offense on the community....

The impact of an offense on the community in which it is committed can be measured in several ways.... In assessing the seriousness of the offense in these terms, the prosecutor may properly weigh such questions as....what the public attitude is toward prosecution under the circumstances of the case. The public may be indifferent, or even opposed, to enforcement of the controlling statute whether on substantive grounds, or because of a history of non-enforcement, or because the offense involves essentially a minor matter of private concern.

Coloradans have spoken. They want marijuana to be legally accessible to adults, and taxed and regulated. They want adult users to be free from state criminal prosecution. There is no substantial federal interest in prosecuting adult users of small amounts of marijuana. The feds don't do it now and they have not even hinted this may change.

If adult marijuana use is allowed under state law, tolerated by the feds, and supported by the community, then it defies common sense and would be bad policy to block a state from creating a means for adults to lawfully acquire it. If possession is legal at the state level, and there is no place for individual users to legally obtain it, the black market will continue to thrive, there will be no decrease in organized criminal activity and the state will lose the expected tax revenue.

Another problem with waiting on the feds: It’s possible they will not take a public stand on Amendment 64. The Department of Justice may not be comfortable with even impliedly endorsing an activity that current federal law forbids. Nor does it want to risk a repeat of the Ogden Memo, which was misinterpreted by many as a declaration that DOJ would take a “hands-off” policy with respect to medical marijuana in states where it was legal. Too many people overlooked the stated exceptions and accused them of backtracking.

Absent a legislative change, silence by the feds is likely to have a negative practical effect on the commercial provisions of Amendment 64. Banks will continue to refuse to open bank accounts, process credit card transactions or give loans to state licensed marijuana businesses, due to the uncertainty as to whether they may be subjected to money laundering sanctions. Landlords won’t rent warehouse space to growers and processors or retail space to stores, out of concern their properties will be forfeited. How does a business deposit its revenue, make operating payroll, and pay construction costs, without using a bank? When word gets around the businesses are holding on to hordes of cash, they become robbery targets. If Amendment 64 is allowed to proceed as planned, these fears would be eliminated. The larger companies would just hire armored car trucks to make the day’s cash deposit, all forms would be filled out as required, and it would be no different than operating a Home Depot store (whose daily cash take-in is probably even greater than marijuana business.) Assurances are also needed for growers and processors.

But whether DOJ decides to challenge Amendment 64, look the other way, or join in a call for legislative change, Colorado has only 7 months, until July 1, 2013, to enact regulations. It needs to move forward with implementing the Amendment now, regardless of the position of the feds.

Our representatives in Congress are doing the right thing by quickly moving for legislative change. Since that won’t happen overnight, our Governor and state Attorney General need to step up their parallel efforts. Instead of asking DOJ for its intentions, they should be strenuously advocating that cooperation is in everyone’s best interest.

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  • Display: Sort:
    Anybody catch the guy who helped (5.00 / 1) (#2)
    by Militarytracy on Sun Nov 11, 2012 at 10:58:46 AM EST
    craft this legislation and the message on Bill Maher?  I'm embarrassed to say that I don't immediately remember his name, but recorded the episode.  He brought up that Hickenlooper was a brew pub owner and an alcohol drug pusher.  He compared him to drug pushers trying to protect their territory and market.  Seemed like a very credible assessment to me too.  I may not smoke weed, probably never will, but it is not safer than my drug of choice which is alcohol.  Alcohol is much more dangerous and is responsible for killing many people every year.

    Mason Tvert? (5.00 / 1) (#3)
    by MileHi Hawkeye on Sun Nov 11, 2012 at 11:33:25 AM EST
    Here's an article from the Denver daily about how his tactics have changed over the years.

    Hickenlooper had better get on board with the will of the people or it could very well bite him in the arse.  Not only pot, but things like fracking.  I could write a real good attack ad right now.


    Mason Tvert (none / 0) (#6)
    by sj on Sun Nov 11, 2012 at 01:08:47 PM EST
    is amazing.  When I first met him, he was practically a one man show and his mission seemed quixotic, but he said that, while it was discouraging, he was never going to give up.  And he didn't.

    Now he's practically a national figure.  Good on him.


    Obama brews his dope AT the White House (none / 0) (#7)
    by Dadler on Sun Nov 11, 2012 at 02:48:11 PM EST
    Combined with his DOJ out of control on this issue, it's enough to make me want to punch him O in the mouth. The guy used to LOVE to smoke pot (probably still does deep down), now he makes his own sedative at home, in the people's house, come on, jaysus, can we get over this ridiculous prohibition already?

    The approach these Congressmembers are (5.00 / 2) (#5)
    by Peter G on Sun Nov 11, 2012 at 12:32:34 PM EST
    taking is absolutely the right one.  They should frame it, of course, in terms of supporting "states' rights" and limiting "big government," to try to peel off some of the Tea Party Republicans as supporters.  The same arguments, of course, would support a repeal of DOMA, which requires the federal government to deny the benefits of their marital status to same-sex couples legally married under the law of their own states.

    These CO politicians should team up (5.00 / 2) (#8)
    by caseyOR on Sun Nov 11, 2012 at 02:50:27 PM EST
    with members of WA's congressional delegation to craft and then pass such legislation.

    Patty Murray is currently something of a golden girl thanks to her leading the Dems pretty successful senate election strategy, and she is in the senate leadership. Get her onboard. Have her twist some arms.

    Oregon's MJ bill failed this time, but with weed legal just across the mighty Columbia folks figure it will be back on the ballot in 2014 when it will likely pass. I doubt Oregon is the only state that will go this route over the next 4-6 years. Congress needs to get on the stick.


    Another way to move the process along (none / 0) (#1)
    by scribe on Sun Nov 11, 2012 at 09:09:01 AM EST
    would be to decline to support federal law enforcement in its activities in the state.

    I wonder how the GOP side... (none / 0) (#4)
    by MileHi Hawkeye on Sun Nov 11, 2012 at 11:39:47 AM EST
    of our congressional delegation is going to react to this.  

    We shall see.  

    One thing I found to be encouraging is that they are disbanding the South Metro Drug Task Force.  

    The decision to disband the task force was the result of an inability to assign adequate resources to sustain drug specific enforcement objectives, and consideration that investing limited resources in a crime specific task force may no longer be the most effective and efficient method of accomplishing the public safety responsibilities of drug enforcement, drug prevention and drug intervention.

    Who Controlls The Drug Schedule ? (none / 0) (#9)
    by ScottW714 on Mon Nov 12, 2012 at 09:23:11 AM EST
    I would think Congress, but I don't know.  What has to be done is getting marijuana removed from the schedule, that's it.

    I disagree about pushing the 'States Rights' or 'Smaller Government' angle, that will only enforce the Tea Party BS.  The Fed does have the right to make laws, and we shouldn't be jumping sides depending on the issue.  The hypocrisy weakens both arguments.

    Marijuana does not meet the Drug Schedule I or II criteria.  Rectify it to reflect it's actual heath/addiction risks, and the rest will fall into place.

    Who cares what the DOJ thinks, we might have a new AG soon, but even if we don't surely there will be a new cabinet in four years.  And we can't be rehashing the same argument every time the there is a new AG, head of the DEA or IRS.  

    If it's not Scheduled, the Fed has no say, simple as that.  No need to look like hypocrites and push the Tea Party non-sense.

    Hypocrisy (none / 0) (#10)
    by peaktopview on Mon Nov 12, 2012 at 12:02:15 PM EST
    I may be wrong, but I think it is the DEA that handles the scheduling.

    One thing I have been seeing lately, which I am not sure if it's not a big deal or anything due to no news coverage or just hasn't come to light, is who owns the patent for cannabinoids (patent US6630507).  Google/patent list the original assignee as: The United States of America as represented by the Department of Health and Human Services.  The patent list a whole host of medical applications, which the scheduling goes against.  Again, this something I have come across on the web (various other sites), and we all know how that goes with info from the web.  The patent lists 2003 as the issue date, so I figure it should have come to light if it truly can be used against the government to reschedule.



    patented cannabinoids? (none / 0) (#13)
    by yankee2 on Tue Nov 13, 2012 at 11:16:42 PM EST
    I do believe there are patents on cannabinoids, but I doubt they would hold up in court. I don't think that natural compounds can be patented, unless they are unusually novel, and their discovery singularly important. The cannabinoids are ubiquitous in Cannabis plants, and we've known about them for a very long time. I don't think simply describing them, even for the first time, or applying for a patent, constitutes ownership. If cannabinoids can be patented, I'm going to patent the starches in corn and potatoes...

    The Controlled Substances Act of 1970 (none / 0) (#11)
    by Peter G on Mon Nov 12, 2012 at 01:59:10 PM EST
    contained the original schedules, and the definitions/criteria for those schedules, which were thus created by Congress.  "Marihuana" was included in Schedule I at that time.  The Act also created an evidence-based, administrative mechanism, under the control of the DEA, to add a substance to a Schedule, remove a substance that is scheduled, or reschedule a substance from one Schedule to another.  Thus, the current schedules are found, not in title 21 of the U.S. Code (statutes) but in title 21 of the Code of Federal Regulations. (Congress can also add or remove a substance, or reschedule it, by legislative action, as I believe it once did with meth.) In the ensuing 40+ yrs, several attempts to invoke the administrative process to require the rescheduling of cannabis have failed, either at the agency level or in court challenging the agency's decision.  The most recent, and seemingly most promising, is currently pending after argument in the U.S. Court of Appeals for the D.C. Circuit.

    Scheduling (none / 0) (#12)
    by yankee2 on Tue Nov 13, 2012 at 11:04:35 PM EST
    I believe that scheduling is a joint responsibility of the DEA and the FDA. It is done administratively, which is to say, undemocratically, in this case, to some pretty evil ends.

    The bottom line is that a bunch of people who make a good living prohibiting drugs is not about to make an objective decision about marijuana!

    All, aware that MJ is the most popular "illicit" drug of all, and having a high probability of abuse (i.e. USE, because it is so safe, and good), have in the back (or front) of their minds "my job depends upon this..." and "should I act against my own personal interests?" There is nothing democratic about it.

    So NONE of the drugs that the DEA regulates are likely to get a fair interpretation and treatment, and without getting into every drug individually, we know that one of them in particular is actually a very good drug, as recreational, as well as medical drugs go.

    We know that there is no legitimate justification for the prohibition of marijuana.

    It's time that the feds be forced to recognize the scientific, objective facts, as well as the truth about marijuana, and make the law reflect that. NOTHING else that is as harmless as marijuana, nor most of what IS in fact more harmful, is prohibited by law.

    The law should be consistent if  nothing else.

    It's time that marijuana is legalized, like most other things, for use by responsible adults.