The U.S. Department of Justice's response to state marijuana laws generated many headlines last week. While the federal government's concession is a clear political victory for drug policy reformers and will do much to embolden further changes to marijuana laws in U.S. states and across the globe, it remains to be seen how, exactly, the new guidelines issued from Main Justice will affect the threats and harassment that several U.S. attorneys have carried on against state-legal marijuana businesses for much of Barack Obama's presidency.
While other reformers immediately seized on the news as an unequivocal victory, I was a bit more skeptical:
"It's nice to hear that the Obama administration doesn't at this point intend to file a lawsuit to overturn the will of the voters in states that have opted to modernize their marijuana policies, but it remains to be seen how individual U.S. attorneys will interpret the new guidance and whether they will continue their efforts to close down marijuana businesses that are operating in accordance with state law...
"In all, today's announcement represents a step in a right direction and a recognition by the administration that the politics of marijuana are rapidly shifting in favor of those who support legalization. However, my optimism is tempered by the fact that despite the Justice Department's 2009 announcement that it shouldn't be a priority to bust medical marijuana providers operating in accordance with state law, this administration went on to close down more state-legal marijuana businesses in one term than the Bush administration did in two terms."
It looks like I may have been right to temper my enthusiasm, as the offices of several U.S. attorneys have in recent days issued statements indicating that the "new" federal policy doesn't change their prosecutorial calculus and that they'll continue business as usual.
A spokesperson for Melinda Haag, the U.S. attorney for the Northern District of California, who has been one of the most zealous federal warriors against state-legal medical marijuana providers, said:
"The office is evaluating the new guidelines and for the most part it appears that the cases that have been brought in this district are already in compliance with the guidelines. Therefore, we do not expect a significant change."
That's not good news for Harborside Health Center, the world's largest and arguably most professionally run medical marijuana dispensary, which is currently battling in court to stop a Haag-led federal forfeiture action against the property on which its operation is located in Oakland.
Similarly, U.S. Attorney Mike Cotter, in Montana, said:
"I think we have to see how it evolves over time. It's not going to affect the way we do business here in Montana."
And here's what U.S. Attorney Jenny Durkan of the Western District of Washington had to say:
"We have consistently focused on federal enforcement priorities in Western Washington, and have worked with our state and local partners to ensure the safety of our communities. That will not change. We will continue to enforce the Controlled Substances Act."
Fellow reformers have pointed out that it seems to be the case that federal prosecutors have largely not interfered in states that have robust regulatory systems to control the marijuana industry and that the harassment mostly seems to occur in states that do not have clear regulations in place, such as California, Montana and Washington.
I'm inclined to agree that this does largely seem to be the case, and that it's another good reason that these states should get with the program and enact laws to regulate the industry already, but I will point out that a comprehensive regulatory regime did not prevent Colorado's U.S. attorney, John Walsh, from issuing a series of threat letters last year to marijuana business that were fully in compliance with state law:
The U.S. Attorney's office today sent letters to 23 dispensaries located within 1,000 feet of a school. The dispensaries were told they have 45 days to close or face criminal prosecution and asset forfeiture...
Colorado law specifies that dispensaries must be at least 1,000 feet from schools but also allows local governments to shrink that distance or grandfather in existing dispensaries.
Now here's what Walsh's spokesman says about how last week's federal announcement will affect their operations:
"We have continually enforced marijuana laws over the past two years or more; we have continued to prosecute those who have trafficked in marijuana... And in addition to individual criminal prosecutions, we are going to continue the special initiatives, such as the school safety...
"And so, inasmuch as that is consistent with what we've been doing in the past, I think there's not going to be a substantial change."
Note the part about "school safety." Does this mean that Walsh's office intends to keep threatening state-compliant businesses with closure just because he personally thinks they're too close to schools even if they're perfectly in compliance with state and local law?
Federal prosecutions and threat letters aside, the other big question is whether the administration will do anything to solve some of the other problems that have made it hard for dispensaries to do business. For example, the federal government has threatened banks not to open accounts for marijuana providers, forcing many of these businesses to become cash-only operations. Last month the DEA told armored car services not to work with dispensaries, exacerbating the already-dangerous and robbery-inducing cash-only situation. Huffington Post quoted an anonymous Justice Department official as saying that the administration is "actively considering" allowing banks to work with dispensaries, but the fact that they're not as of yet willing to put anything in writing leaves a lot to be desired.
So, while the Obama administration's strategic retreat in the "war on drugs" is without a doubt a political victory for our side and is cause for some celebration, the new Justice Department prosecutorial guidelines leave lots of wiggle room for individual U.S. attorneys to continue mucking things up for state-legal marijuana businesses, and the remarks of those who have led the federal crackdown to date are not at all encouraging.
Now is not the time for the marijuana policy reform movement to tone down our advocacy efforts. We must continue to hold the Obama administration's feet to the fire and make sure they follow through in the spirit of this most recent memo, which they most certainly did not do in the wake of the 2009 medical marijuana memo that so many of us (myself included) were initially very excited about.