Some Call It Legalization

by Fred Gardner, September 4, 2013

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:”

• 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 marijuana;

• 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.

* 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.

* * *

If federal prosecutors don’t have to prove that a dispensary or grower sold marijuana to minors — or even knew that minors would be using the product being sold — they can take down any given purveyor on a distribution-to-minors rap.

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 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 on the basis of its size (127,000 members at last count).

“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.” In other words, he is not ordering Melinda Haag, the US Attorney for the Northern District of California, to drop the eviction case against Harborside (which would be impolitic). But nothing is preventing Haag from dropping the case by applying the 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 Dave Hodges and John Lee, who recently drafted a legalization measure (with collective input from online allies) and hope to put a lawyerized version of it on the California ballot in 2014, think the DOJ memo will advance their cause. It may also inspire competing measures from Reform Establishment types more eager to embrace DOJ enforcement priorities.

Undoubtedly activists in other states will also start thinking in terms of initiatives in 2014. And 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.” Adolescents and young adults will be most vulnerable, not because their brains are “still developing” but because their weed will be illegal. The end of Prohibition may be in sight, but when you look close, hardly a hair on Uncle Sam’s head has been mussed up!

The DOJ Press Conference Misdirection

Attorney General Eric Holder and his top deputy, James Cole, made front-page headlines August 29 by announcing that the U.S. Department of Justice will allow the states of Washington and Colorado to implement marijuana-law reforms enacted by voters last November. The last time DOJ staged such a splashy, marijuana-related media event was October 7, 2011, when federal prosecutors proclaimed their intention to seize the property of landlords renting to medical cannabis dispensaries. That announcement deflected attention away from the Department's involvement in the “Fast and Furious” gun-trafficking fiasco. Here's the relevant background.

Last week’s “we're-allowing-legalization” press conference and the ensuing media attention also deflected attention away from a story that DOJ wanted downplayed — a much bigger story, involving a phenomenally expensive, probably unconstitutional, secret (till now) spying-on-Americans program called “The Hemisphere Project.” As explained by Scott Shane and Colin Moynihan in yesterday's New York Times, “The government pays AT&T to place its employees in drug-fighting units around the country. Those employees sit alongside Drug Enforcement Administration agents and local detectives and supply them with the phone data from as far back as 1987.”

The key word in the above sentence is “sit.” The Hemisphere Project is a jobs program for people who don't do real work. Too bad we can't have a jobs program for people who do real work.

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