It's Going to Take More than a Memo to Fix the Drug War

Today, the DOJ released a memorandum (PDF, hereafter "Cole memo") sent to all US Attorneys' offices to "update [the DOJ's previous] guidance" on federal policy as it relates to liberalized state marijuana laws. A lot of drug reformers are hailing this memo as a great step forward for the government. I'm less convinced.

As I've written elsewhere, we've seen DOJ memos on this topic before. Indeed, the opening lines of the Cole memo directly reference the 2009 Ogden memo and its 2011 clarification. The latter,  also written by Cole, effectively gutted the spirit of the Ogden memo's message to de-prioritize state-law compliant medical marijuana distributors: "The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law."

Looking at the language of today's memo, there is no concrete change in policy by the DOJ. Yes, it is encouraging  that the Attorney General wants to de-emphasize regulated marijuana distribution as a prosecutorial priority, from a politically symbolic standpoint. But U.S. Attorneys don't primarily operate within the realm of politics--they prosecute people for the federal government. They have the widest discretion imaginable and literally countless federal laws with criminal and civil sanctions from which to choose to prosecute any person in their jurisdiction. Those prosecutions cost money to investigate and they have finite resources with which to work--though much larger than the resources of the would-be defendants facing federal prosecution.

Now, there are millions of illicit drug users in this country. Feds have neither the time, money,  nor inclination to prosecute them. But larger distributors--say, medical or recreational cannabis dispensaries--are easy targets because they a)are operating in violation of federal law; b) are doing so openly; c) keep records of their transactions to comply with state laws; d) are extremely low risk to interdict because there is clearly no evidence the operators are armed and dangerous. The evidence is clear cut, the investigation doesn't require any resource intensive surveillance, the feds can seize copious amounts of drugs for photo ops, and they can seize the assets through forfeiture to make the venture if not profitable, at least less expensive. (The last time I checked, federal asset forfeiture fund was around $1 billion after expenses.) In short, cannabis dispensaries are low hanging fruit for ambitious young attorneys who want to close cases. Nothing in today's memo precludes them from doing this in Colorado, Washington, or anywhere else.

The best part about the memo is that it encourages attorneys to exercise discretion, giving cover to any USAs/AUSAs who, like many Americans, realize the Drug War is lost. It lays out eight main objectives of federal marijuana policy that are at least reasonable, insofar as any prohibition regime can be:

-Preventing the distribution of marijuana to minors
-Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels
-Preventing the diversion of marijuana from states where it is legal under state law in some form to other states
-Preventing state-authorized activity from being used as a cover or pretext for the trafficking of other illegal drugs or illegal activity
-Preventing violence and the use of firearms in the cultivation and distribution of marijuana
-Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use
-Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands
-Preventing marijuana possession or use on federal property

Now, some of these give me pause because they are so broad--could you imagine holding a liquor store accountable because someone's teenager busted into mom and dad's liquor cabinet?--but these problems are beyond the scope of this post. But all of this is actually mooted by the last line in the memo:

"Finally, nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest."

Which is to say, "You're U.S. Attorneys, do what you want, like you always do."

bellum medicamenti delenda est