In a recent post (“Cease Fire?”) I argued that the Administration has radically changed its approach to drug law enforcement: that they appear to have accepted normalization of marijuana use and commerce. But I also pointed out that real reform of federal drug laws rests in congress. More recent developments now bring the question of what, if anything, congress is willing to do on this issue: whither Congress?
The most striking thing to come out of congress recently has been silence. From the mid-1970s to the mid-90s, Congress never saw a drug law it didn’t like. In fact, the members played “Can you top this?”, each trying to prove he was the most ardent Drug Warrior of them all. The results included RICO and CCE, the powder/crack cocaine sentencing disparity, mandatory minimum sentences, and the Club Drug Act, to name just their most visible actions. They also created the Drug Czar (Office of National Drug Control Policy). But then they seemed to fall asleep for a decade. The War on Drugs looked like it was running on autopilot.
The long nap ended with some quiet moves toward reform. Judges regained their discretion to impose sentences less than those mandated by the Mandatory Minimum law. The crack cocaine-powder cocaine sentencing disparity was reduced from 1 to 100 down to 1 to 18 (still totally unjustified and discriminatory). An erosive trickle had appeared in Fortress Prohibition, but then congress went back to sleep.
However 2012-13, the annus maribilis of the Drug War, has been dramatic enough that those trickles now look like signals of a looming tsunami. First, Colorado and Washington enacted state legalization of marijuana (including growth, distribution, and sale) by referendum. Then after nine months – is that time span significant? – the Obama administration took three executive steps almost simultaneously. First it announced that U. S. Attorneys would be instructed to draft charging instruments (complaints and indictments) to avoid invoking mandatory minimum sentences. The next announcement was that it would not prosecute those operating in compliance with state marijuana laws if those laws complied with eight standards articulated in that memo. This was immediately followed by a statement that the Attorney General would work with the bank regulators to make normal banking services available to marijuana businesses in those states.
Reaction among the federal law establishment was immediate. A district judge in Maryland announced a very light sentence in a marijuana trafficking case, saying that the logic of the Justice Department’s statements was thoroughly convincing. Two of the most aggressively Prohibitionist U. S. Attorneys in California dismissed at least three high profile, big-dollar asset forfeiture cases.
But where were those senators and representatives who, barely a decade before, had been so anxious to prove that they were the most ardent of all Warriors against Drugs? Their silence on the issue was deafening. The District of Columbia, where Congress has direct governmental authority is on the verge of legalizing marijuana, but Congress has made no move to block it – a contrast from its blocking medical marijuana there for over a decade. Congress is quiescent. Not. One. Peep.
The other side, long cowed into silence, began to stir. Almost as soon as the Colorado and Washington election returns were counted, eight representatives sponsored a bill that would have required the federal government to respect state marijuana laws. The week after the Justice announcement of non-prosecution in states with effective marijuana laws, the Senate Judiciary Committee had a hearing on the issue of enforcing the federal law. Assistant A-G Cole and two Washington state law enforcement officials testified in support of the new position. The only witness opposing the action was a professional Prohibitionist and rehab huckster. The committee members themselves voiced no opposition. Since then Republican Sen. MCain has stated that Prohibition has been a failure and the law needs to be re-examined. New Democratic Senator Booker from New Jersey and Republican Senator Paul from Kentucky announced, virtually simultaneously, that drug sentences were too severe and needed to be revised; and then each of them independently said they would work together on the issue.
The Administration has begun a retreat; one from which a resumption of hostilities will be extremely difficult, if not impossible. But the drug laws are so tightly written and draconian that real reform without Congressional action is impossible. The question “Whither Congress?” shouts for an answer.
The next election cycle in 2014 will probably provide that answer. As many as four or five states will probably follow Colorado and Washington. The Administration will be too far down the non-enforcement road to backtrack. The question is whether the pressure on a Congress with already weakened support for the Drug War will be enough to overcome the factionalism and paralysis now preventing action on anything. The failure of the Drug War looks to be so obvious and so accepted that reform will probably force its way even through this do-nothing Congress during the next two years.