THE BLOG

Holder to Justice Department: Hands Off Legal Marijuana

08/29/2013 04:10 pm ET | Updated Oct 29, 2013

On August 29, 2013, Attorney General Eric Holder called the governors of Washington and Colorado to tell them that the Justice Department would not block their state's implementation of voter passed legal recreational marijuana programs. Justice will cooperate with the states, even though federal law still prohibits the possession, cultivation and distribution of marijuana under almost all circumstances. (Marijuana is grown by the government for research and provided to four or five patients under the compassionate IND program of the Food and Drug Administration.) This is the policy I recommended in the Washington Post on Nov. 12, 2012. To carry out this policy, Deputy Attorney General James M. Cole today issued a four-page memorandum to all United States attorneys. I will comment on this memorandum below.

This is a tremendous political victory for the millions of Americans who have been working to end marijuana prohibition. It was set up by the votes in Washington and Colorado last November when more than 55 percent of the voters in those states approved initiatives to legalize the production and distribution of recreational marijuana under strict controls and taxation in those states. But decades of struggle by NORML (National Organization for the Reform of Marijuana Laws), the Drug Policy Alliance (formerly the Drug Policy Foundation), the American Civil Liberties Union, and the Marijuana Policy Project laid the foundation for those votes (I played a role with all those organizations since 1976). Countless citizen activists associated with those groups, and newer organizations such as stopthedrugwar.org, Students for Sensible Drug Policy (SSDP), Law Enforcement Against Prohibition (LEAP), SAFER, and Marijuana Majority (to just name a few and to risk omitting many who played essential roles) helped create the political and legal climate in which the Obama administration and Justice Department were compelled to retreat.

This decision will unleash enormous energy to adopt marijuana legalization programs in other states. In almost every state legislature bills will be introduced. In many states, citizens will begin to gather signatures to put marijuana legalization on the ballot. While some of these measures will be unsuccessful initially, in the next decade, those in most of America and many parts of the world are going to be living with legal marijuana. Today's announcement accelerates the entire timetable for marijuana law reform.

Energy must now be directed to developing the appropriate social controls for legal marijuana. We have seen very positive changes in how we behave with alcohol and tobacco. Social norms that effectively discourage young people from marijuana use, especially heavy use, need to be developed and propagated. We need to anticipate the risks that commercialization of marijuana pose in the promotion of brands and advertising that encourages heavy or inappropriate use.

Importantly, today's announcement and memorandum explicitly further legitimizes state experimentation with marijuana distribution for medical purposes. Unfortunately they do not transfer marijuana from Schedule I of the Controlled Substances Act to a schedule recognizing its medical legitimacy. That is an important development that must be taken to expedite the delivery to the public of marijuana as a medicine in a way that doctors can know what their patients will be using, and which will expand the opportunity to refine dosage and cannabinoid profiles. Maryland's health authorities hope to use its medical marijuana program that takes effect on Oct. 1, 2013 to build this research base.

Those who remain wary of the idiosyncratic prosecutorial practices in U.S. Attorney offices around the country will focus on the last paragraph of the memorandum that affirms that federal law regarding marijuana remains valid and any violation may be investigated and prosecuted where it "serves an important federal interest." As those of us who have observed the waves of federal raids against dispensaries in California, Michigan, Montana, Washington and Colorado, federal prosecutors and DEA agents have used the federal law to harass and persecute doctors and medical marijuana providers. Hopefully, those days are over!

The heart of today's Justice Department memorandum is the recognition of:

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...

Justice warns that these systems must be carried out in practice, that the states "provide the necessary resources" and "enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities."

Today is really an historic day. Today's announcement is the recognition by the U.S. Department of Justice, which has been the primary obstacle for reform of marijuana laws for 40 years, that the political reality has changed. Sadly there are tens of thousands of persons in prison today for using, growing and distributing marijuana. The number of those imprisoned for marijuana is going to start coming down. We need to call upon President Obama and the governors of the various states to start systematically commuting the sentences of marijuana prisoners. State prosecutors need to stop seeking prison or jail sentences for marijuana offenders. In cities across the nation, mayors and city councils must direct their police departments to stop marijuana possession arrests.

Today, it is profoundly important to recognize that the Obama administration has joined the rapidly growing consensus that there is no moral justification for punishing marijuana use and those who provide marijuana to adult users.