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

Govt. sends out a reminder to law enforcement that there are still plenty of pot crimes out there to prosecute.
 
 
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Photo Credit: Shutterstock.com/alexmillos

 
 
 
 

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.