They Blinked

They Blinked

 

On August 28 Attorney-General Eric Holder announced that the federal government would not sue to set aside marijuana legalization statutes in Colorado and Washington nor interfere with state implementation of those laws if eight conditions are met.  By itself this declaration might not mean much, but it follows five other recent events that, taken together, suggest a real change in the Administration.

In 2009, the A-G announced that the government would not prosecute medical marijuana patients and their caregivers who conformed to state laws.  While actions, direct and indirect, have continued, or even accelerated, against for-profit marijuana providers, the users themselves have been left alone.  The memorandum was brief and poorly worded.  Argument is possible about whether these actions are DoJ-initiated or the acts of rogue U.S. Attorneys acting individually, but medical marijuana has now spread to twenty states, and increasingly large numbers have safe access to the drug.

Even earlier, Congress, acting at the request of the Sentencing Commission, had reduced the disparity of mandatory minimum sentences for power and crack cocaine.  Earlier, possession or sale of one gram of crack mandated the same sentence as one hundred grams of powder.  Although the Commission had recommended parity between the two forms, Congress only reduced the ratio from 1:100 to 1:18.

The reduction in cocaine sentences was part of the cause of an historic drop in federal prison population.  After a thirty-year stretch in which that population had increased every year, Obama’s first term was marked by a decline in that number that has now lasted for three years: a dramatic turn around.

Earlier this year, the A-G directed U. S. Attorneys bringing prosecutions for drug cases not involving guns or violence, minors, or direct involvement in criminal enterprises to draft the charging instruments so as to avoid invoking mandatory minimum sentences.  This process would normally mean that the quantity of drugs involved would not be included in the indictment.  This procedure would restore sentencing discretion to the judge and allow imposition of sentences lower than those mandated.

The fifth event happened on the same day that the current memo accepting state legalization laws was issued.  The DoJ also directed the U. S. Attorneys and the Comptroller not to impose banking or money-laundering penalties on banks providing normal banking services to businesses operating in compliance with state laws.  The justification for this abstention was that forcing these businesses to operate on a cash basis increased violence by making them targets for robberies and made taxes harder to collect.

The new Cole memo, seen in the light of these five events, suggests that the current administration has turned a corner on Drug Prohibition.  While they have not signaled any strong move toward the legalization of drugs nationwide or of initiating any proposals to congress, they do seem to have admitted the futility of using the criminal justice system as a means of regulating drug use.  From that point, doing away with Prohibition is a small step.  The major stumbling block to further progress will be congressional resistance.

The eight criteria the DoJ set out for their abstention on state marijuana laws reveals some of the Administration’s thinking on the broader subject of drug laws in general.  Control of access for minors and limitations on impaired driving are traditional applications of state general police powers, affect public health and safety, and express much wider concerns than just marijuana.  Eliminating participation by criminal enterprises, connections to other controlled drug, suppression of guns and violence, and prevention of trafficking to other states all show a long-standing overall concern with suppressing professional organized crime.  The trafficking issue also concerns the rights and autonomy of the receiving states that may still have Prohibition.  Possession and growing on federal property are themselves fields of direct federal enforcement.  In addition, the concern about growing on federal property expresses concern about environmental damage and conservation, also tradition federal issues.

These criteria also serve as guidelines for other states considering changes in their marijuana laws.  Some are straight-forward, but others require interpreting and expansion.

Controls on use by minors, driving under the influence of various drugs, and punishment of violence and the use of guns are routine applications of state police powers to many circumstances; and extending them to the use of marijuana is also straight-forward.  The major risk faced by states is that they will allow a fear-driven hysteria to force them to accept blood or urine tests for driving (or employment) that are not backed by, or are even contrary to, solid science.

The need to exclude criminal enterprises may be the most problematic.  Merely looking at money or profit will not provide a good definition.  If money is the test, how can a multi-million dollar legal organization like Harborside dispensaries be distinguished from a Mexican cartel?  The best approach may be a licensing system for growers that excludes those with criminal records or who are not citizens.  This kind of licensing, in turn, would raise issues of otherwise lawful historical marijuana growers and users who have been convicted only of marijuana crimes.  Requirement of growers’ licenses, including locations, would also prevent growing on federal lands.

Quantity limits on growers and sellers, as well as on purchasers, would be the most effective way to prevent diversion into interstate trafficking as well as restricting production to legal dealers, not criminal gangs.  Quantity limits would also limit any large increase in the number of users, preventing any measurable increase of consumption on federal lands, primarily national forests and parks, hospitals and military installation.

Ironically, the act of legalization itself may be the best way to fulfill the memo’s criteria.  Legalization, especially if tolerated by the federal government, would remove most of the Prohibition surcharge in marijuana prices, lowering them to the equal of those on other agricultural products.  Just like Al Capone and Lucky Luciano were forced out of the alcohol market by Repeal, legalizing marijuana would force the Cartels and street gangs out of marijuana, violence would disappear from the market, and outlaw growers could not meet the efficiencies of professional farmers.

The listed criteria show that the Administration has rejected the Puritanical insistence that sobriety by all is a religious and moral duty.  It has changed its focus to one concentrating on public health and safety and environmental protection.  This change is a major step toward reform.

The government has not backed down completely from the War on Drugs,…

But they have blinked.