Reality Check: The White House's New Pot Policy Is Just 'Limited Prohibition,' Not a Drug Reform Panacea
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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!