DOJ to Defer Challenge to New State Marijuana Laws

The Department of Justice has officially spoken about state marijuana laws. It has advised the Governors of Colorado and Washington that provided it enacts robust regulations that do not not interfere with 8 DOJ priorities, it will "defer its right to challenge their legalization laws at this time."

AG Eric Holder has issued a memorandum to federal prosecutors (available here) on the new policy and the 8 priorities in enforcing federal marijuana laws.

The key point: The major sea change is not with respect to possession for personal use, which the feds don't normally charge anyway, but in its willingness to allow some private production and distribution of marijuana. [More...]

First, the reasoning:

The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.

A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice. Jurisdictions that have implemented systems that provide for regulation of marijuana activity must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities.

The priorities:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity
  • Preventing violence and the use of firearms in the cultivation and distribution of
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and
    environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

Good news: Size, by itself, won't be determinative.

Accordingly, in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department's enforcement priorities listed above. Rather, prosecutors should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective state regulatory system.

A marijuana operation's large scale or for-profit nature may be a relevant consideration for assessing the extent to which it undermines a particular federal enforcement priority. The primary question in all cases- and in all jurisdictions- should be whether the conduct at issue implicates one or more of the enforcement priorities listed above.

Some caveats (read the fine print):

The Department's interest in preventing the distribution of marijuana to minors would call for enforcement not just when an individual or entity sells or transfers marijuana to a minor, but also when marijuana trafficking takes place near an area associated with minors; when marijuana or marijuana-infused products are marketed in a manner to appeal to minors; or when marijuana is being diverted, directly or indirectly, and purposefully or otherwise, to minors.

On changing its mind about a legal challenge:

If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.

Don't miss the warning that the memo creates no legal rights (which so many overlooked in the Ogden medical marijuana memo.)

This memorandum does not alter in any way the Department's authority to enforce federal law, including federal laws relating to marijuana, regardless of state law.

Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA.

Even in jurisdictions with strong and effective regulatory systems, evidence that particular conduct threatens federal priorities will subject that person or entity to federal enforcement action, based on the circumstances.

This memorandum is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. It applies prospectively to the exercise of prosecutorial discretion in future cases and does not provide defendants or subjects of enforcement action with a basis for reconsideration of any pending civil action or criminal prosecution.

Finally, nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.

Despite the qualifiers, this is welcome progress.

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  • Display: Sort:
    Sniff, sniff, sniff... (5.00 / 1) (#3)
    by Dadler on Thu Aug 29, 2013 at 04:23:09 PM EST
    Methinks the Dems might need some early momentum going into the next election. After that, hide the reefer again, Farmer John.

    While entirely unenforceable (none / 0) (#1)
    by Peter G on Thu Aug 29, 2013 at 03:26:18 PM EST
    I have to say this is better than I expected. Not enough to justify canceling the scheduled Congressional hearing on the subject, but not bad.  A little concerned about the "school zone" exclusion -- if that's what DOJ means by "when marijuana trafficking takes place near an area associated with minors."  Establishing a no-deference area within 1000 feet from any school, college, or playground (etc.) could rule out implementing the Colorado law in most of Denver, or the Washington law in most of Seattle, for example.

    Also concerned about... (5.00 / 1) (#2)
    by kdog on Thu Aug 29, 2013 at 03:46:40 PM EST
    the preventing diversion to other states thing...what does the DOJ expect Colorado and Washington to do?  Set up customs-like inspection checkpoints on the state borders?  

    Americans are accustomed in traveling freely from state to state...there is nothing these enlightened states can reasonably do about the more tyrannical states on their borders refusing to follow their lead.  Not fair to make it CO's and WA's responsibility.



    In Calif (5.00 / 1) (#5)
    by Mikado Cat on Fri Aug 30, 2013 at 02:12:49 AM EST
    I routinely in the course of a year go through half a dozen inspections stations. Returning from Las Vegas, "any fruits or vegetables, fire works, etc" easy to add weed to the list.

    Requiring a prescription from an in state doctor should prevent "most" sales from crossing the border to another state.

    Gotta see how this plays out over time, I mean haven't the feds busted people in the last month?


    Enlightening... (5.00 / 2) (#6)
    by kdog on Fri Aug 30, 2013 at 05:42:54 AM EST
    come to think of it, we discussed the immigration checkpoints well within the US borders awhile back on TL, and it blew my mind that it was even happening in the "land of the free".  

    I've never seen anything like it back east...and certainly don't want to see it become more commonplace.  I bet Bloomberg would love to get his snout all up in the trunks of cars coming up from the south to look for guns & cigs, but a warrant or at least probable cause has always been customary.  Who am I kidding...the NYPD is pulling over anybody near the projects with Carolina or Georgia plates, not to mention stop & frisk, there's just no official checkpoints...the whole city is a potential random checkpoint;) But I digress...

    Traveling state to state should be as easy and free as crossing the street imo...one nation (under a groove).  (Sh*t traveling the world should be that easy for that matter, but I know that's another of my freedom pipe dreams;)  I'd hate to lose more freedom of movement while CO & WA throw off the chains of prohibition...one step forward, two steps back.


    Just Say No (5.00 / 1) (#12)
    by squeaky on Fri Aug 30, 2013 at 11:27:04 AM EST
    From TL..

    What happens when you refuse to comply with a request for information about your citizenship at an immigration checkpoint within the U.S.? Apparently, they have to let you continue on your way and you don't have answer questions or go to the secondary area. At least, that's what happens to those stopped in this video that refused -- the agents backed down.

    If I understand correctly.... (none / 0) (#9)
    by magster on Fri Aug 30, 2013 at 09:36:35 AM EST
    You have to show ID to buy mj in Colorado, and if you are not a resident, you can only buy a very very small amount at any one time.

    Quarter Oz max... (none / 0) (#10)
    by kdog on Fri Aug 30, 2013 at 10:46:46 AM EST
    for out of state visitors in CO, which I consider a decent amount (I'm a quarter a week guy).

    Stop at 4 stores you've got a lid, stop at 16 stores you've got a QP.


    Haven't read the new Colo law (none / 0) (#11)
    by Peter G on Fri Aug 30, 2013 at 11:20:19 AM EST
    but I'd venture a modest wager that if you "stop at 4 stores" or "stop at 16 stores" for the purpose of evading the 1/4 ounce limit, you've got yourself a felony, as well as "a lid" or "a QP."

    Of course... (none / 0) (#13)
    by kdog on Fri Aug 30, 2013 at 11:29:20 AM EST
    that would be illegal, but out of state visitors who enjoy the sacrament are accustomed to breaking the law.

    Sh*t if I make the trip I'm making it worth the trip;)  But I guess the easier thing to do would be to have a resident buy a larger amount for you to bring home as a souvenir.


    And bringing it home as a souvenir, (none / 0) (#14)
    by Peter G on Fri Aug 30, 2013 at 11:40:09 AM EST
    even though legally obtained in Colorado, would also still be a crime, both state and federal, as AG Holder points out, if home is out of state.

    Since when... (none / 0) (#15)
    by kdog on Fri Aug 30, 2013 at 11:53:07 AM EST
    is breaking state and federal laws a bad thing?  I call it living;)

    And where did you see me taking any position (none / 0) (#16)
    by Peter G on Fri Aug 30, 2013 at 12:08:35 PM EST
    on "good" or "bad"? Just trying to help Jeralyn keep the "law and" part of the blog clear.

    No worries... (none / 0) (#17)
    by kdog on Fri Aug 30, 2013 at 12:39:36 PM EST
    Don't mind me my friend...as you've surely guessed, the legal/illegal game just bores me.

    It resembles "structuring." (none / 0) (#23)
    by Mr Natural on Fri Aug 30, 2013 at 09:59:36 PM EST
    And so it begins... (none / 0) (#4)
    by Aspidistra on Thu Aug 29, 2013 at 06:59:29 PM EST
    Kudos to the state of Colorado for drawing a line in the sand by legalizing marijuana.  And super kudos to the federal government for not stepping over it.  

    This is the process of ending Prohibition.  Step by step.

    but yet (none / 0) (#7)
    by AmericanPsycho on Fri Aug 30, 2013 at 09:18:09 AM EST
    it's still a schedule 1 drug, correct? I don't believe a word he has to say on this. These guidelines are arbitrary and open to interpretation. Not impressed at all.

    More of the same (5.00 / 1) (#8)
    by AmericanPsycho on Fri Aug 30, 2013 at 09:24:36 AM EST
    "The true nature of the Obama administration's approach to voter-approved medical marijuana is now clear. They want more cash underground. They want our streets to be more dangerous."



    Uh, well (none / 0) (#18)
    by jbindc on Fri Aug 30, 2013 at 12:42:33 PM EST
    Since it would require an act of Congress to take mj off Schedule I, what did you expect Holder to do?

    I'm pretty sure that's not so, JB (none / 0) (#19)
    by Peter G on Fri Aug 30, 2013 at 01:11:57 PM EST
    Doesn't section 811 of title 21 say that the Attorney General can both add and remove substances from the initial schedules established by Congress, as well as transfer substances between schedules?  (The AG has delegated this power to the DEA, I think, but all the same, it's the AG's statutory authority.) The only exception I see is if such action would be barred by an international treaty to which the U.S. is a party. Dunno about that, but I don't recall reading anywhere that rescheduling (or de-scheduling) marijuana would be barred by any treaty.

    It does (none / 0) (#20)
    by jbindc on Fri Aug 30, 2013 at 01:34:01 PM EST
    And, as you rightly point out, international treaties would prevent Holder from removing mj off the Schedule.

    Since 21 USC § 811(d)(1) says:

    (1) If control is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by subsection (a) of this section or section 812(b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section.

    So how would a unilateral move by Holder get around the Single Convention on Narcotics treaty, to which the US is a state party?


    As I said, I don't know that the treaty (none / 0) (#21)
    by Peter G on Fri Aug 30, 2013 at 02:04:35 PM EST
    does prevent it.  You haven't pointed to any particular language that might make you (or me) think so, and it's too complicated for me to take time for right now.  Back to work.

    Here's a good start (none / 0) (#22)
    by jbindc on Fri Aug 30, 2013 at 02:41:09 PM EST
    Wiki, FWIW (emphasis mine)

    Cannabis could be rescheduled either legislatively, through Congress, or through the executive branch. Congress has so far rejected all bills to reschedule cannabis. However, it is not unheard of for Congress to intervene in the drug scheduling process; in February 2000, for instance, the 105th Congress, in its second official session, passed Public Law 106-172, also known as the Hillory J. Farias and Samantha Reed Date-Rape Drug Prohibition Act of 2000,[14] adding GHB to Schedule I.[15] On June 23, 2011, Rep. Barney Frank and Rep. Ron Paul introduced H.R. 2306,[16] legislation that would completely remove cannabis from the federal schedules, limiting the federal government's role to policing cross-border or interstate transfers into states where it remains illegal.

    The Controlled Substances Act also provides for a rulemaking process by which the United States Attorney General can reschedule cannabis administratively. These proceedings represent the only means of legalizing medical cannabis without an act of Congress. Rescheduling supporters have often cited the lengthy petition review process as a reason why cannabis is still illegal.[3] The first petition took 22 years to review, and the second took 7 years. In 2002, the Coalition for Rescheduling Cannabis filed a third petition.


    If an international treaty, ratified by the U.S., mandates that a drug be controlled, the Attorney General is required to "issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations" without regard to scientific or medical findings.[18] Under the Single Convention on Narcotic Drugs, cannabis and cannabis resin are classified under Schedule IV, that treaty's most strictly controlled category of drugs.[19] However, Article 4(c) of the Single Convention specifically excludes medicinal drug use from prohibition, requiring only that Parties "limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs".[19] On the other hand, Article 2(5)(b) states that for Schedule IV drugs:

    A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party.[20]
    The clause "...in its opinion..." refers to a judgment that each nation makes for itself. The official Commentary on the treaty indicates that Parties are required to make the judgment in good faith. Thus, if in the opinion of the United States, limiting cannabis use solely to research purposes would be "the most appropriate means of protecting the public health and welfare," the U.S. would be required to do that. Presumably, this would greatly restrict the possibilities for medical use.

    Jon Gettman, in Science and the End of Marijuana Prohibition, claims that "if prohibition ends in the U.S. it must also end world-wide because U.S. law requires that we amend international drug control treaties to correspond with our own findings on scientific and medical issues".[3] This is at least partially correct; 21 U.S.C. § 811(d)(2)(B) of the Controlled Substances Act states that if the United Nations Commission on Narcotic Drugs proposes rescheduling a drug, the HHS Secretary "shall evaluate the proposal and furnish a recommendation to the Secretary of State which shall be binding on the representative of the United States in discussions and negotiations relating to the proposal".[17] As the major financial contributor to the United Nations Office on Drugs and Crime and related agencies, the U.S. has a great deal of influence over international drug policy.[21] However, former United Nations Drug Control Programme Chief of Demand Reduction Cindy Fazey points out in The UN Drug Policies and the Prospect for Change that since cannabis restrictions are embedded in the text of the Single Convention,[20] complete legalization would require denunciation of the Single Convention,[22] amendment of the treaty,[23] or a reinterpretation of its provisions that would likely be opposed by the International Narcotics Control Board.[24]

    All in all, now that I look, I see nothing (5.00 / 1) (#24)
    by Peter G on Sat Aug 31, 2013 at 11:29:28 AM EST
    in that description of the treaty to prevent the AG, through the DEA, from rescheduling marijuana to a category that it better fits, or from exempting legitimate medical uses from criminal enforcement.  Nothing of a legal nature, that is.  Political, is something else.