If Colorado and Washington were teenage stoners and US Attorney General Eric Holder was their stern but modestly liberal father, he would have just told them, "Listen, you can smoke a little pot when you're an adult, but I expect you to use it responsibly, and that means no driving in cars while stoned, no passing joints to people under the age of 18. And please call home every few days while setting up a robust regulatory structure. If you screw up or start hanging out with criminal delinquents, you're going straight to your room."
Last year, voters in Colorado and Washington legalized small amounts of marijuana for recreational use. Marijuana is still illegal under federal law, and officials in both states have been waiting for months to find out if the Justice Department would sue them or charge them with crimes if they instituted the legalization policies.
Last week, Holder held a joint phone call with the governors of both states to tell them that they wouldn't necessarily be grounded if they let their adult constituents smoke a little herb, but if there is going to be a party, then there also has to be rules. Holder explained the federal government's "trust but verify" approach to setting up a regulatory structure for legal weed in both states, and federal prosecutors are expected to help state officials set up those regulations.
The announcement was big news for marijuana advocates in Washington, Colorado and the 17 states (plus the District of Columbia) where marijuana can be used with a prescription. In a memo released on the same day, however, Holder reserved the government's right to intervene in any state that allows its legalization schemes to undermine the Justice Department's marijuana enforcement priorities, which include preventing drugged driving, marijuana use by minors, criminal gang activity, gun violence and the diversion of marijuana to states where it is illegal.
Some reformers are hailing the announcement as the beginning of the end of the War on Drugs, or at least the war on marijuana, and activists already are organizing efforts to legalize marijuana for recreational or medical use in at least eight states. But the memo released last week is simply guidance for federal law enforcement officials and specifically states that it does not in any way prevent the government from enforcing federal law, which continues to place marijuana as an illegal drug in the same Schedule I class as LSD and heroin.
The Drug War in Court
Stephen Gutwillig, deputy director of the pro-reform Drug Policy Alliance, warned that federal attorneys - some of whom are hostile toward marijuana – still would have "enormous" discretion in implementing Holder's guidelines and prosecuting marijuana crimes, even in states where marijuana is legal.
One US attorney in Washington already has said that her home state's medical marijuana program is "not tenable" under the new federal guidance and promised to crack down on anyone operating outside state regulations for recreational weed.
"We're in a wait-and-see mode," said Ezekiel Edwards, director of the Criminal Law Reform Project at the American Civil Liberties Union (ACLU).
Edwards said that, in the past, federal attorneys have targeted medical dispensaries that were in compliance with state law, and the Justice Department has not laid out a clear plan for monitoring the implementation of its new policy to ensure that federal attorneys' enforcement decisions are aligned with Holder's objectives.
Speaking the Language of Reform
"It matters whether the US attorneys implement the guidelines; it matters profoundly to thousands of individuals across the country," Guttwillig told Truthout. "Yet, this memo is the federal government starting to speak the language of marijuana reform."
Guttwillig points to a surprise twist in the Justice Department memo outlining the Obama administration's stance on pot. In one sentence, the department admits that a robust, state-run regulatory system could aid federal enforcement by "replacing the illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which all revenues are tracked and accounted for."
This echoes the same argument that drug policy reformers have made for years - if drugs like marijuana are legalized, taxed and regulated, the profits traditionally enjoyed by violent criminal gangs that fuel a brutal worldwide drug war will go instead to legitimate businesses and the government.
"What it boils down to: If this policy were truly enacted, it would represent the real end of the marijuana prohibition in this country," Guttwillig said. "Which is a big 'if,' given the tortured history of the Obama administration and the federal conflict with state marijuana laws."
In the past, the medical marijuana industry has misunderstood enforcement memos issued by the Obama administration, leading to dozens of raids on medical facilities in several states and forcing the Justice Department to clarify its positions.
But admitting that state-based regulation of legal marijuana actually could benefit federal enforcement objectives, Guttwillig said, is a "profound rhetorical shift" for the Obama administration that once only begrudgingly accepted state programs for medical weed.
Polls show that a majority of Americans also can follow this logic or are at least hip to the volumes of medical research showing that marijuana is less dangerous and addictive than other drugs and can be effectively used as medicine.
In a recent Pew Research Poll, 52 percent of Americans supported legalizing marijuana, up from 41 percent in 2010. Seventy-two percent of respondents said that government's anti-marijuana efforts cost more than they are worth. In August, a Rasmussen poll found that 82 percent of Americans think the United States is losing the War on Drugs originally declared by President Nixon 40 years ago.
The Obama administration's attitude toward drug enforcement also is evolving. The memo released last week reiterates to federal prosecutors and attorneys that the government is interested in fighting organized and violent crime, interstate trafficking and sales to minors, not trumping state legalization laws to crack down on individual users and legitimate businesses that are properly regulated, regardless of their size. Also, in August, Holder announced that the Justice Department will no longer pursue mandatory minimum sentences for certain low-level, nonviolent drug offenders because the nation "cannot prosecute and incarcerate" its way toward being safer.
But don't expect the Obama administration to reschedule marijuana or push for an end to prohibition anytime soon. Guttwillig said Obama has been ambivalent toward drug policy reform despite his own colorful history, particularly with marijuana.
"This is, I think, how decades of failed marijuana prohibition is going to end," Guttwillig said. "It's likely not going to be the president rescheduling. It's not going to be Congress. It's going to be incremental, state by state, hollowed out from within."
Meanwhile, state governments will spend $20 billion to enforce marijuana laws over the next six years in a country where a vast majority of arrests are for possession, and blacks are 3.7 times more likely to be arrested for possession than whites, despite comparable usage rates," according to the ACLU. Marijuana prohibition, the group reports, has helped incarceration rates skyrocket to "unacceptable levels."