Wednesday, November 14, 2012

Why the Feds Are Unlikely to Respect Washington and Colorado

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