The United States Department of Justice has decided not to seek to overturn Initiative 502, the law approved by voters last year that makes possession of small amounts of marijuana in Washington legal. Governor Jay Inslee announced the news this morning in a joint statement with Attorney General Bob Ferguson:
Today we received confirmation Washington’s voter-approved marijuana law will be implemented.
We received good news this morning when Attorney General Eric Holder told the governor the federal government would not preempt Washington and Colorado as the states implement a highly regulated legalized market for marijuana.
Attorney General Holder made it clear the federal government will continue to enforce the federal Controlled Substance Act by focusing its enforcement on eight specific concerns, including the prevention of distribution to minors and the importance of keeping Washington-grown marijuana within our state’s borders.
We share those concerns and are confident our state initiative will be implemented as planned.
We want to thank the Attorney General for working with the states on this and for finding a way that allows our initiative to move forward while maintaining a commitment to fighting illegal drugs. This reflects a balanced approach by the federal government that respects the states’ interests in implementing these laws and recognizes the federal government’s role in fighting illegal drugs and criminal activity.
In a memo sent to all United States Attorneys, Deputy Attorney General James Cole stressed that the federal government has not changed its position on marijuana:
As the Department noted in its previous guidance, Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. The Department of Justice is committed to enforcement of the CSA consistent with those determinations.
Outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws. For example, the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property.
Instead, the Department has left such lower-level or localized activity to state and local authorities and has stepped in to enforce the CSA only when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above.
The enactment of state laws that endeavor to authorize marijuana production, distribution, and possession by establishing a regulatory scheme for these purposes affects this traditional joint federal-state approach to narcotics enforcement.
The Department’s guidance in this memorandum rests on 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.
A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice.
Cole writes that Justice is particularly concerned about marijuana getting into the hands of minors, intoxicated driving resulting from marijuana usage, and marijuana being used as a cash cow for gangs looking for a way to finance their criminal activities. So long as Washington and Colorado can effectively enforce their marijuana laws, the Department won’t seek to overturn them.
But Cole also warns: “If state enforcement efforts are not sufficiently robust… 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.”
In other words, the federal government is going to give I‑502 a chance to work, but reserves the right to go to court in an attempt to strike it down if it sees fit.
Inslee and Ferguson thanked Attorney General Eric Holder and his team for the guidance and declared that Washington’s enforcement efforts would be robust.
“We can assure the Attorney General that Washington state will remain vigilant in enforcing laws against the illicit marijuana market,” they said. “Since voters approved Initiative 502 last year, the state has been working to implement it. Today’s announcement from Attorney General Holder is a confirmation that the process can continue to move forward as planned. We appreciate that the federal government will allow the voice of Washingtonians to be heard on this issue.”
Seattle Mayor Mike McGinn also applauded the memo.
“Washington voters overwhelmingly approved the legalization of marijuana last year, a policy that I fully support,” said McGinn in a statement. “Since then, we have wondered what the course of action would be for federal officials, for whom marijuana remains an illegal substance. Today, I applaud US Attorney General Holder’s announcement that he will not interfere with the will of Washington voters. Seattle public safety officials, residents and entrepreneurs can now proceed with confidence that the will of the voters has prevailed in Washington.”
“I am pleased that Attorney General Holder has provided clarity about the future of I‑502 in Washington State,” added Interim Police Chief Jim Pugel.
“Our department will continue our mission of public safety, harm reduction, and public education encouraging safe and lawful behavior with regards to the guidelines for marijuana established by Washington voters.”
Given that Congress has not changed federal law on marijuana, and given the Department of Justice’s traditional hostility to legalization and decriminalization, this guidance from Holder is truly good news which we can all be grateful for.
We at NPI enthusiastically supported Initiative 502 last year and have since supported efforts to thoughtfully implement it. Already, we have seen prosecutorial resources freed as local prosecutors have dropped charges against Washingtonians for possessing marijuana. Now we can move forward with confidence, knowing that that the Department of Justice will be keeping an eye on us, but not planning a lawsuit seeking I‑502’s demise in federal court.
UPDATE, 1:10 PM: U.S. Representative Suzan DelBene, who represents NPI’s home congressional district, has weighed in on the news:
I strongly believe that state laws like I‑502 should be respected, and in June, I joined with several of my Washington state colleagues in writing to Attorney General Holder to request that the Department of Justice assure our citizens that they will not be penalized by the federal government for activities considered legal under state law.
As a member of the House Judiciary Committee, I look forward to working closely with my colleagues to monitor the implementation of I‑502 and its impact on federal drug control policy. I want to thank Senate Judiciary Committee Chairman Patrick Leahy for scheduling a hearing next month on the conflict between state and federal marijuana laws, and I urge the House Judiciary Committee to consider convening a hearing on this topic in the coming months as well.
We’ll post further reaction as we get it.