The federal government will not sue Colorado and Washington to stop laws allowing for the possession sale and (in the case of Colorado) cultivation of cannabis from being enacted, nor will they seek out dispensaries for prosecution so long as the dispensaries are following state laws.
Basically: if dispensaries play by state rules, they most likely won’t be targets of federal prosecution. (Read the entire memo below)
The memo from Deputy Attorney General James Cole to all U.S. State Attorneys starts out by asserting the full, legal position of the government: that marijuana is still a Schedule 1 controlled substance and federally illegal.
That much hasn’t changed.
But with regard to state-legal cannabis sales to adults over 21 in Washington and Colorado, the policies seem to be taking a slow but sizeable shift. Primarily: the memo admits that the feds have “traditionally relied on states and local law enforcement agencies to address marijuana activity.” Now that Colorado and Washington laws allow for marijuana cultivation, sales and possession of limited amounts, the feds can’t rely on that help.
So instead of being dicks about it, they say they will allow state-regulated sales so long as “states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems.” The feds say they will still focus resources on operations or people found to be
• Distributing to minors;
• Funneling marijuana money to criminal enterprises, gangs, and cartels;
• Sending herb from states where it is legal under state law in some form to other states where it isn’t;
• Using their business as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
• Using violence and the use of firearms in the cultivation and distribution of marijuana;
• Contributing to drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
• Growing cannabis on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
• Possessing or using herb on federal property.
While the memo is definitely encouraging and certainly a step in the right direction, it doesn’t come with any explicit guarantees or guidelines and it leaves the discretion to prosecute recreational cannabis dispensaries up to federal prosecutors. Colorado’s U.S. Attorney John Walsh, for example, says in his statement that his office will continue to go after “cases involving marijuana trafficking directly or indirectly to children and young people.”
Walsh also hints that Colorado’s medical marijuana regulatory system hasn’t done what it says it would do and that his office “will continue to focus on whether Colorado’s system, when it is implemented, has the resources and tools necessary to protect those key federal public safety interests.” If not, they say they would challenge any of the regulatory structure that they disagree with.
It is vague statements like those that could be broadly applied at his discretion. Of course, hopefully it won’t be used frivolously but it illustrates the point that no real solid policy changes have actually been made. Essentially, these re just suggestions to prosecutors (albeit pretty damn good suggestions if the feds intent is what we all would like to think it is).
In a way, it’s not unlike the guidelines they’ve set out for medical cannabis dispensaries, caregivers and even patients so far. Of course, the raids on dispensaries and caregivers have continued since those memos came out. Some point out that the dispensaries being targeted have mostly been accused of one of the eight no-no’s mentioned in the memo and that hundreds of other dispensaries have been allowed to remain open. That might be true, but there are plenty of examples of caregivers following state laws that are still being arrested for helping out patients – likely by overzealous federal attorneys.
The truth is probably in the middle, but one thing is for sure: this is really the first time they have addressed recreational sales of cannabis in any form of policy so far and they seem to be saying they’ll allow it so long as it is regulated because they’ve got bigger fish to fry.
The decision has been months in the making, with Attorney General Eric Holder promising a response soon after the November passage of the Washington and Colorado laws. That never came, despite him promising again in February that a response was “coming soon”.
Then earlier this week Vermont Sen. Patrick Leahy announced he would be holding Senate Judiciary Committee meetings to discuss the divide between federal and state marijuana laws – both medical and recreational. Leahy himself advocates for the state’s rights in this case, saying “It is important, especially at a time of budget constraints, to determine whether it is the best use of federal resources to prosecute the personal or medicinal use of marijuana in states that have made such consumption legal.I believe that these state laws should be respected. At a minimum, there should be guidance about enforcement from the federal government.”
Governors in Colorado and Washington praised the decision and vowed to set an example for how other states could regulate and tax cannabis as well.
Read the entire memo below: