Confused About Pot? So's the Law
Federal law makes it a crime to grow, sell or possess cannabis. New state laws in Colorado and Washington state permit those activities, and officials there are issuing licenses to local companies to commit what remain federal felonies.
The U.S. Department of Justice announced in August that it would give a low priority to enforcement efforts against state-licensed growers and sellers in states with “strong and vigorous” regulations, except where they involve other activities such as violence or interstate sales.
President Barack Obama has spoken out about the harm done by the 650,000 arrests a year for cannabis possession (disproportionately among young minority men). He recently said that marijuana is no more dangerous than alcohol, and that he’s willing to let the legalization experiments in Colorado and Washington go forward, though he shied away from an endorsement of legalization nationally.
Critics, including Representative John Mica, a Florida Republican, have attacked both the president and Attorney General Eric Holder for sending “mixed messages,” with Mica using the term “schizophrenic.” Some Republicans, and some pundits, have charged Holder with having a “pot problem,” and with disregarding “the rule of law” by choosing which laws to enforce. Those criticisms are badly wide of the mark.
While there is much to criticize in both the actions and the inactions of the administration on cannabis policy -- especially its failure to tear down the unnecessary bureaucratic barriers to research -- critics of the Justice Department decision to let Colorado and Washington state go forward with their tax-and-regulation systems seem uninformed both about the facts and the law.
As a matter of law, Section 873 of the Controlled Substances Act orders the attorney general to “cooperate with local, State, tribal and Federal agencies concerning traffic in controlled substances and in suppressing the abuse of controlled substances.” Most states have drug laws that track federal prohibitions. But the voters in Washington state and Colorado chose regulation over prohibition as a means of dealing with cannabis abuse; if the state regulatory systems succeed, there will be less drug abuse than if they fail.
A straightforward reading of the law would therefore seem to require the attorney general to cooperate with those state efforts rather than trying to disrupt them, if in his judgment doing so promotes the purposes of the law in controlling drug trafficking and drug abuse. It is Holder’s critics who seem to be selective about which laws they want to pay attention to.
As a matter of fact, federal drug law enforcement is a relatively small part of the national drug enforcement effort; about 80 percent of the 500,000 drug offenders behind bars in the U.S. are in state prisons and local jails. The Drug Enforcement Administration has fewer than 5,000 agents worldwide; Colorado and Washington state between them have more than 22,000 state and local police.
The Justice Department could easily have shut down the licensed growers and sellers in Washington and Colorado, but it would simply not have had the capacity to control strictly illegal production in those states without the help of state and local police. Letting the reasonably regulated Colorado and Washington systems operate while going after participants in California’s virtually unregulated “medical marijuana” business creates the right incentives for state officials and industry participants; if you don’t want federal attention, keep things under control.
The attorney general could reasonably be criticized for not driving a harder bargain with the authorities in Colorado and Washington.
He could have demanded effective measures to keep legal prices high to prevent increases in juvenile cannabis use and heavy use and to curb the risk that state-licensed cannabis will end up being sold across state lines. He could have (and still could) warn state-licensed cannabis sellers that the federal laws will be enforced strictly against any enterprise that engages in active marketing, as opposed to simply setting up a shop and a website and waiting for buyers to appear.
But the choice to work with the states rather than against them was both legally defensible and substantively reasonable.
Given the disproportion between the resources of the DEA and the size of the illicit drug markets, federal drug law enforcement is necessarily selective. Do Holder’s critics propose to increase the DEA budget so it can take over all cannabis law enforcement in Colorado in Washington? If not, would they propose to reduce enforcement against cocaine? Methamphetamine? Heroin? Prescription drugs?
A serious argument can be made for cutting back on federal drug law enforcement generally -- of the roughly 200,000 people in federal prison, about 100,000 are serving sentences for drug offenses. There's scant evidence that putting more and more dealers behind bars has resulted in higher drug prices or less drug availability. But that’s not a case those now criticizing the administration seem interested in making.
Some people on the other side of the legalization debate criticize the administration for not “rescheduling” marijuana, claiming that it doesn’t fit the criteria for Schedule I (which also includes heroin and LSD). Alas, Congress in its (somewhat limited) wisdom hasn’t created a category for moderately dangerous but medically unapproved drugs. There’s no legitimate doubt that some of the chemicals in cannabis have medical value. But “marijuana” doesn’t name a medicine, if a medicine is a material of known chemical composition that clinical trials have shown, at some specific dosage and route of administration, to be safe and effective in the treatment of some specific ailment. The huge variations from strain to strain, and from one means of administration to another, mean that clinical trials would have to be done on specific cannabis preparations, not on “marijuana” as a general category. And it’s only those specific preparations that would then qualify for “downscheduling.”
Even an arbitrary decision to move the plant itself from Schedule I to Schedule II (or even Schedule III) would have mostly symbolic effects. It would still be a federal offense to grow, sell or possess cannabis except as a Food and Drug Administration-approved drug available by prescription. Downscheduling would be a consequence of clinical trials leading to FDA approval and prescription availability, not a substitute for them.
The administration deserves criticism for not tearing down the pointless bureaucratic barriers now obstructing clinical research. The University of Mississippi’s monopoly on the production of cannabis for research should be broken, and research projects with appropriate clearances shouldn't have to make special application to the federal government for a “grant” of a few grams of cannabis: a requirement that applies to no other controlled substance, and that in effect enables federal censorship of research efforts that might lead to unwelcome results. But allowing research to go forward is one thing; making regulatory decisions unsupported by research is something else again.
Those demanding that the Justice Department shut down the Colorado and Washington experiments and those demanding rescheduling are alike in proposing notional solutions to real problems. We need more coherent marijuana policies, but only changes in legislation -- the province of the Congress, not the executive branch on its own -- can bring them about.
(Mark A.R. Kleiman is professor of public policy at the Luskin School of Public Affairs at the University of California at Los Angeles and co-author of "Drugs and Drug Policy: What Everyone Needs to Know." He has advised Washington state marijuana regulators.)
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