Sunday, October 13, 2013

Cease Fire?

Cease Fire?


Has the Obama administration declared a cease fire in the War on Drugs?  The evidence surely points in that direction.

In 2008, Candidate Obama made several remarks suggesting that he intended to liberalize marijuana laws.  Many of his supporters became critical when most of his first administration passed without action on these statements.  But toward the end of that term the Justice Department issued the Ogden memorandum, stating that it would not prosecute medical marijuana users or their caregivers complying with state medical marijuana laws.

After the 2012 elections, Obama was faced with additional challenges in drug law enforcement.  Washington and Colorado both passed initiatives legalizing marijuana sales and possession, new states recognized medical use of marijuana (raising the total to twenty-one jurisdictions doing so), and congressional sequestration dramatically reduced the funds available for law enforcement.  Eight months passed before the administration responded to those events, but when they came, they were sweeping[1].

The first break was an announcement by Attorney General Holder that he was instructing federal prosecutors to draft charging instruments (complaints and indictments) to avoid imposing mandatory minimum sentences in non-violent drug cases.  He supported this instruction by showing the immense burden these lengthy sentences placed on the prison system.

Toward the end of August, a memorandum from Asst. A-G Cole announced that the federal government would abstain from proceeding against state marijuana laws and their implementation if those laws complied with eight standards articulated in that memorandum.  To a large extent, those standards provide guidelines for other states wanting to enact similar laws.  Senator Patrick Leahy convened a hearing by the Judiciary Committee to inquire about this memo.  The hearing lasted one day, Cole was the only federal spokesman to appear, and only one witness – a professional anti-drug advocate with financial interests in the rehabilitation industry – was opposed to the action taken by the government.

On the same day the Cole memo was released, A-G Holder announced he would be conferring with federal bank regulators to find some way for businesses in compliance with these new state laws to use normal commercial banking services.  Up until now the government has used the threats against banks under the Money Laundering and RICO/CCE laws to prevent them from doing business with marijuana enterprises legal under state laws.  Forcing these enterprises to operate on a cash basis not only made them hard to manage, it also made them into targets for robbery.  About six weeks after Holder’s announcement, Bank of America has agreed to be a depository for all marijuana taxes and license fees collected by Washington State.  Since large banks operate very cautiously, this action by BoA suggests some accommodation by the federal bank regulators in line with the Holder announcement.

The other collateral attack used by aggressive federal prosecutors against state-legal marijuana has been to use asset forfeiture laws (CCE) against landlords leasing property to marijuana businesses.  If an asset – including real property – is used in the commission of a federal crime, that asset may be seized and forfeited to the government.  In a sense asset forfeiture is the government’s biggest stick against marijuana businesses: if landlords are scared away from leasing to them, legitimate businesses are reduced to being street dealers.  From this viewpoint, the announcement a few days ago by one of the most aggressive U. S. Attorneys in California dismissing four large asset forfeiture cases was a bombshell.  It took a major weapon out of play and put it back on the shelf.

One executive voice has been strangely missing from this flurry of federal actions.  The Office of National Drug Control Policy, the agency designated by Congress to set and articulate the government’s drug strategy has said almost nothing about these developments.  In fact, except for its required annual report, it has said nothing of substance.

In summary, over the last two months, the administration has:

·         Decided not to use mandatory minimum sentences,

·         Acquiesced in state marijuana legalization laws,

·         Announced a review of banking regulations to allow state-legal businesses to have access to banking services (and Bank of America has entered the business),

·         Dismissed a series of large, high-profile asset forfeiture cases.

Combining these four major reductions in drug law enforcement with the eight month delay between the 2012 election results and their announcements leads to the conclusion that the administration has declared a cease fire in the War on Drugs – at least in the War on marijuana.  If this cease fire continues for another thirteen months, the next round of elections should usher in a new group of legalizing states, possibly four or five more.  If this does result, the cease fire will become a fait accompli: an irrevocable accession to state-by-state legalization.

Why do I characterize this as a cease fire instead of a truce or even a surrender?  The problem is that the administration can only decide how to pursue the War on Drugs; it cannot decide on its own to end the war.  Only congress can end the war, and it has shown no inclination to do so.  When will congress admit that they have lost the war and repeal Drug Prohibition?

One hopeful sign has been the silence from Capitol Hill.  No elected Drug Warriors have been screaming for punishing the legalizing states; no committee hearings have pushed stricter enforcement.  The silence is deafening.  One more election may shift the congressional balance of power and change this cease fire into a peace treaty.

[1] For a running account of these developments, see my earlier “Whatcha Goona Do?”, “Six Months”, “They Blinked”, “Ogden and Cole”, and “Parsing the Cole Memo”.

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