Almost one year since both Colorado and Washington State legalized marijuana for personal use, the Deputy Attorney General of the US released a memo titled “Guidance Regarding Marijuana Enforcement“. Hailed by some as progress in its own right, I find myself remembering the Ogden Memo back in 2009 (and subsequent raids) and wondering whether the GRME holds any hints as to what the future holds.
Well, the first sentence of the second paragraph reads: As the Department noted in its previous guidance, Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels.
Well, I don’t know about you but my first thought was of alcohol prohibition and how whiskey, rum, gin, and vodka were serious sources of revenue to large-scale criminal enterprises, gangs, and cartels. So I started feeling pretty good about the memo until I got to the next sentence: The Department of Justice is committed to enforcement of the CSA consistent with these determinations.
So at this point, I’m thinking that they’re telling us pretty much everything right there… but, on page three, we get into some interesting phrasing: In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities set above. Indeed, a robust system may affirmatively address those priorities by, for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for.
Holy cow! Maybe they do realize what prohibition does! But, of course, every silver lining has a cloud and we get back to it on the last page: As with the Department’s previous statements on this subject, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.
They came out and say “this memo means as much as the Ogden memo.”
Well, perhaps that is unfair… what else is the administration doing? Well, the DEA is telling armored car companies to not work with dispensaries (given the pressures of the Department of the Treasury on credit card companies, this is somewhat suspect).
All in all, I see it this memo as a bit of a concession to the political reality that there are a lot of people out there who, despite their feelings on marijuana, don’t like the idea of the Federal Government kicking in doors of state-legal dispensaries… but it doesn’t concede an inch. It comes out and says “this is discretionary, this can change on a dime, this can change tomorrow if we feel like it.”
What then, can be done?
Generally, the comeback to complaints about Prohibition 2.0 is usually something to the effect of “so, if you don’t like it, change the law!” To which you can really only point to such things as Colorado and Washington State changing the law because they didn’t like it… while you might think that this would be a pretty good comeback, it generally doesn’t end the discussion.
The CSA needs to change. The policies of how substances are scheduled need to change. Apparently, the policies of how we’re putting pressure on credit card companies and armored car companies need to change. Little by little, public opinion is shifting and public opinion is putting pressure on the administration to lighten up on how it deals with marijuana dispensaries… but memos like this one are attempts to deflect criticism by mimicking a change in direction without actually doing anything.
That said, we’ve reached the point where the administration is feeling the need to deflect criticism. That indicates that those opposed to the War On Drugs have, indeed, made some steps in the right direction. But memos like this one do a better job of showing how far we have to go rather than how far we’ve come.
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