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The White House Pot Policy: Limited Prohibition

Attorney General Eric Holder phoned the governors of Colorado and Washington August 29 to advise that the U.S. Department of Justice will allow implementation of the marijuana-law reforms enacted by voters in 2012. Some call it “legalization,” but “limited prohibition” would be a more accurate term for the new status quo. The DOJ also released a memo from Deputy Attorney General James Cole to federal prosecutors restating their “enforcement priorities:”

1. Preventing the distribution of marijuana to minors*

2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;

3. Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;

4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;

5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana;

6. Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use

7. Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and

8. Preventing marijuana possession or use on federal property.

*These enforcement priorities are listed in general terms; each encompasses a variety of conduct that may merit civil or criminal enforcement of the CSA. By way of example only, 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.

The DOJ expresses 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.” To the DEA and to cops at the state, county and municipal levels the Cole memo is saying, “The genie is out of the bottle, guys, but you are welcome to push down on its shoulders, and here are the pressure points: adolescents, young adults, regular users who happen to drive automobiles…”

DOJ urges law enforcement (in Colorado and Washington, implicitly) to develop,

“effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for. In those circumstances, consistent with the traditional allocation of federal-state efforts in this area, enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity. 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.”

Two whole paragraphs of Cole’s three-page memo apparently refer to Oakland’s Harborside Health Center, the only dispensary the feds have tried to close based on its size. Read the relevant background here.

The Department’s previous memoranda… drew a distinction between the seriously ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. In drawing this distinction, the Department relied on the common-sense judgment that the size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal enforcement priorities set forth above.

As explained above, however, both the existence of a strong and effective state regulatory system, and an operation’s compliance with such a system, may allay the threat that an operation’s size poses to federal enforcement interests. 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.

Cole goes out of his way to note that his memo “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.” It would have been impolitic had Cole effectively ordered Melinda Haag, the US Attorney for the Northern District of California, to drop the eviction case against Harborside. But she can drop it on her own by applying the Cole memo retroactively. (Our sources never thought the move against Harborside had been Haag’s idea.)

Harborside Executive Director Steve DeAngelo said the DOJ announcement was “greeted with joy and relief by our patients and staff.” He added that “Harborside is still facing crippling tax assessments; seizure of the properties where we are located; and denial of banking, credit card, security and armored car services. We hope that these and other federal efforts to impede our ability to operate as a legitimate business will be also be ended in the near future.”

Political organizers who recently drafted a legalization measure (by a collective editing process) and hope to put a lawyerized version of it on the California ballot in 2014 think the latest DOJ memo will advance their cause. It may also inspire competing measures from the Reform Establishment. Undoubtedly activists in other states will now start thinking in terms of initiatives in 2014, too. And state legislators will come up with schemes to tax and regulate —making sure, as per the Cole memo, that state law enforcement efforts are “sufficiently robust,” with minors in the cross hairs. The end of Prohibition is in sight, but when you look close, hardly a hair on Uncle Sam’s head has been mussed up!

Fred Gardner is putting the history of the medical marijuana movement online at beyondthc.com. Contact him here.

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Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at fred@plebesite.com

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