NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Thursday, August 29th, 2013

Department of Justice won’t sue to overturn I‑502, Washington’s law legalizing marijuana

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.

How­ev­er…

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.

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One Comment

  1. Whew! So Wash­ing­ton can imple­ment I‑502 with­out inter­fer­ence from The Oth­er Wash­ing­ton.

    # by Dallas T. :: September 26th, 2013 at 12:43 AM