Feds Won't Block Marijuana Legalization in Colorado, but That Doesn't Help California
There were more than a few celebratory smoke-outs last fall after voters in Colorado and Washington legalized small amounts of cannabis for adults. But for almost a year, lawmakers, law enforcement officials, and the general public were waiting for the other shoe to drop, namely, the federal Justice Department's lawsuit to overturn the end of marijuana prohibition, which is in direct conflict with the federal Controlled Substances Act.
Will he or won't he?
At last, it appears that will not happen. The Denver Post was the first to break the news that Attorney General Eric Holder won't intervene to block legalization. Instead, the Justice Department issued a new set of guidelines Thursday to federal prosecutors across the country.
At first glance, the guidelines seem like a step forward. As long as marijuana operations obey state law, don't harm kids, and don't funnel large amounts of cash to the cartels, they're okay. Interestingly enough, those are the exact same rules medical marijuana operations in California are playing by -- including the operations in Oakland, Berkeley and San Francisco which the feds are trying to shut down.
It's worth noting that the feds have relaxed their stance toward state-legal marijuana somewhat. In 2010, when Californians seemed on the cusp of approving limited legalization with Prop. 19, Holder stepped in and informed state and local officials that they could be prosecuted for allowing state-legal marijuana grow operations. That October surprise helped sink California marijuana legalization.
Two years later, Holder and the Justice Department did and said nothing in Colorado and Washington, where voters approved marijuana legalization.
Today's memo is signed by Deputy Attorney General James M. Cole. That name should resonate. It was Cole who issued the June 2011 memo that said marijuana remained federally illegal and marijuana purveyors subject to prosecution, in seeming contradiction -- in spirit if not in letter -- of the infamous October 2009 memo signed by Cole's predecessor, James Odgen, which said President Barack Obama's administration wouldn't prosecute cannabis operations that obeyed state law.
What's disturbing is that the new memo isn't especially new. It's rather a review of "certain enforcement priorities" that have been in place "in recent years," as Cole writes.
Those priorities are summarized in eight bullet points. To wit:
- No sale to minors
- No cover to criminal gangs "or cartels"
- No sending marijuana out of state to where it's still illegal
- No using state law to cover "trafficking... or other illegal activity"
- No violence
- No drugged driving
- No marijuana possession or use on federal property (Hello Ocean Beach! Hello, Presidio!)
By all metrics, the state-legal enterprises in California shut down by the feds or in the process of being shut down by the feds appear to obey all these rules.
Here's where Cole gets squishy, and keeps the door wide open to continue doing what the feds have being doing all along -- and indeed, reserves the right to shut down Colorado and Washington at any time.
State and local lawmakers and law enforcement are put on notice by Cole, who says that "a system adequate to that task [i.e., obeying the above rules] must not only contain robust controls and procedures on paper; it must also be effective in practice."
"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," he writes, adding that "... large-scale, for profit commercial enterprises.... continue to be appropriate targets for federal enforcement and prosecution."
In other words, if Colorado and Washington's adult-use marijuana systems are deemed unworthy, they can be shut down. And furthermore, places like California, where lawmakers have proved unwilling or unable to pass statewide guidelines around medical marijuana, it's still a federal free-for-all.
Take the example of Harborside Health Center in the East Bay. The feds have been trying to shut down the dispensary, which is by reputation and claim the largest in the country -- and ergo the world -- for the simple reason that it is too big.
And the "common-sense judgement that the size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicated the federal enforcement priorities set above" will continue, writes Cole, who adds that the law has not changed and that the memo is guidelines, nothing more.
Which means the memo is pure status quo: the feds could -- and might -- shut down state-legal cannabis operations in any state at any time. The same as it ever was.
For what it's worth, marijuana advocates praised the news as a step forward -- but with a healthy dose of caution.
"The guidelines seem to leave some leeway for the feds to continue making it hard for state-legal marijuana providers to do business," said Tom Angell, spokesman for the Marijuana Majority. "The real question is whether the president will call off his federal agencies that have been on the attack and finally let legal marijuana businesses operate without harassment, or if he wants the DEA and prosecutors to keep intervening as they have throughout his presidency and thus continue forcing users to buy marijuana on the illegal market where much of the profits go to violent drug cartels and gangs."