The recent ballot
initiatives that allow recreational cannabis use in Colorado and
Washington have been welcomed by many folks as a sweeping change in
American drug policy. To the extent that the initiatives represent
a shift in popular conception of cannabis use, I join the general
enthusiasm expressed by libertarians and a several on the Left.
However, the Obama Administration has shown no substantive will to
rein in the federal Drug War and until it does, these measures can
only be viewed as partial victories in those two states. Moreover, many supportive commentators seem overly
optimistic of what is likely to happen, perhaps based on misplaced assumptions
of how the Drug War is fought.
Quoting Mark Kleiman,
co-author of Marijuana Legalization: What
Everyone Needs to Know,
MoJo's Kevin Drum writes:
[Kleiman:]The federal government could shut down both of those experiments, if it were determined to do so....But it would make it impossible to learn anything useful from the Colorado and Washington experiments.
So why shouldn’t the federal government cut Colorado and Washington some slack? As long as those states prevent marijuana grown under their laws from crossing state lines and thereby subverting marijuana prohibition in the rest of the states, the Justice Department could step back and let the consequences of the new policies play themselves out. They might succeed, or they might fail. In either case, the rest of us could learn from their experience.
I doubt that either state can
effectively prevent locally-grown marijuana from crossing state
lines, but hell, they can't prevent it now either. So I'm with Mark:
there's no need to announce any public change of policy, but Obama
should tell DEA to lie low for a while and see how Colorado and
Washington do. A controlled experiment like this is the best way
of finding out the effect of full legalization of marijuana. Does it
lead to higher consumption? Is it a gateway drug? Will it reduce
consumption of alcohol? (emphasis mine)
There are three main
problems with this excerpt.
First, Professor
Kleiman's question rests on the assumption that the federal government has any
desire to see how the “experiments” play out. As I've noted
before, the DEA
effectively prohibits experimental research on cannabis in a
controlled environment by anyone but the National Institute on Drug
Abuse, a government agency. Cannabis, as explained in Kleiman's book,
is the only illicit drug that is off-limits to non-governmental
researchers that are open to positive value in cannabis use. There is no reason to believe that while the DEA won't
allow literal experiments by scientists in a lab, they would be
amenable to whole states being substituted as figurative
laboratories. As a drug researcher, he knows this, but this sort of
'why not?' obscures the hurdles the government institutes to hamper the
“science” the ONDCP is so fond of citing to support their
policies.
Second, Drum assumes that
cannabis would need to cross state lines to violate the Interstate
Commerce Clause of the Constitution to enter the federal
jurisdiction—a perfectly reasonable belief. Unfortunately, this is
not how the Supreme Court has ruled...twice. In Wickard
v. Filburn (1942), the New Deal Court ruled
that a farmer who set aside wheat for his own family's use could be
regulated—read, “prohibited”—by the federal government of the
Interstate Commerce Clause. More recently, in Gonzales
v. Raich (2004),
the Court ruled—with Republican-appointed Justices O'Connor,
Rehnquist and Thomas dissenting—that cannabis grown by a terminally
ill individual in accordance with state law for one's own medical use
violated that very same Interstate Commerce Clause because by not participating in a (prohibited) interstate market, you affect demand. Not
coincidentally, this tortured reading of the clause was cited in just nearly (if not) every single brief supporting the government in the Health
Care Cases (2012).
In short, much of the Left's economic and legal agenda rides on the
federal government asserting power, via the Commerce Clause, into any
aspect of our economic and personal lives. That Obama's
Administration would find a new respect for federalism for cannabis is laughable...literally.
Third, and perhaps most
important, it's not only the DEA that needs to stand-down. The U.S.
Attorneys in every federal jurisdiction in the country have
very wide latitude on whom they prosecute and for what offense. As
you may recall, early in the Obama Administration, Attorney General
Holder said publicly, backed-up by what is known as the “Ogden
Memo,” that the DOJ would no longer consider raiding medical
cannabis facilities that complied with state law a priority. Since
then, the DOJ
has increased
raids on those same facilities, sometimes
with the help
of municipal authorities who don't agree with state law. If a
public directive is so willfully ignored, there's little to suggest
private encouragement would meet a different fate, particularly in the Eastern District of Washington.
Matt Yglesias, in a post
that has a much
more realistic view of the new regime, still errs a bit:
“The DEA
obviously can't police low-level retailing, so if states and
localities say it's legal it'll be a lot simpler in practice to get
some pot.”
On the facts of the matter, Matt is
correct. There will be no DEA patrols going through neighborhoods
looking for cannabis. That said, it has been and continues to be very
easy to “get some pot” all across America. Most cannabis users
(and dealers, for that matter) simply aren't caught. The Drug War
isn't a failure because you can still get some drugs under some
circumstances—the failure lies, in part, in the fact drugs are
still virtually ubiquitous despite draconian enforcement efforts.
Further, the feds are not above using relatively low-level stings to
get convictions—they know most offenders are going to plea out.
Indeed, they don't even need to charge anyone at all to intimidate a
low-level user ignorant of federal law into cooperation. Then, all
they need is an inside-lead to a small group of people who have a
common connection to drugs—say a commune or even a co-op—and
prosecutors may attach the word “conspiracy” to add the cannabis
together to reach federally chargable amounts. If any of those people
have otherwise legal and unrelated guns on the premises, the charges
really start to mount up. A small dispensary or a self-sustaining
bunch of hippies can become a target of an ambitious U.S.
Attorney—and it's all over. Though hypothetical, it's not at all
unreasonable to think this sort of thing will happen—the track
record against medical cannabis facilities proves that. I'm sure the
DOJ has its stable of confidential informants ready and willing to
work under new rules.
So I join Yglesias and Drum with a
cautious optimism that this will make life better for cannabis users
in Colorado and Washington. But we should not fail to mention that
this will not deter federal law enforcement from prosecuting
state-legal activity. That enforcement, though less harassing to the
general public than state and municipal policing, will continue to
ruin lives through incarceration and depriving the sick of relief.
Indeed, it is hard to imagine the Administration that continues
to deprive cancer and AIDS patients regular access to their medicine
suddenly changing its tune now that Dave-O can load up his stash
before a Phish show. If anything, I would expect heightened federal
action against participants in the new regimes not long after they are put in place.
bellum medicamenti delenda est
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