Posted on 30 Aug 2013
Yesterday, the Department of Justice announced further guidance to its federal marijuana enforcement policy, based upon recent state ballot initiatives that legalize the possession of small amounts of the drug. Although marijuana is considered an illegal drug under the Controlled Substances Act, Colorado and Washington have enacted laws that legalize its recreational use. Additionally, for nearly two decades, several states have allowed use of the drug for medicinal purposes.
Yesterday, the Department of Justice announced further guidance to federal marijuana enforcement policy, based upon recent state ballot initiatives that legalize possession of small amounts of the drug.
Although marijuana is considered an illegal drug under the Controlled Substances Act, Colorado and Washington have enacted laws that legalize its recreational use. Additionally, for nearly two decades, several states have allowed use of the drug for medicinal purposes.
Under the updated policy, DOJ announced that “enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.” As such, “prosecutors should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective regulatory system.”
In making its announcement, DOJ enumerated several enforcement priorities that inform whether state regulatory schemes are adequate enough to preclude federal enforcement of the Controlled Substances Act. Thus, state schemes that embrace the following federal priorities are more likely to be protected from federal challenges:
- 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 marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other 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; and
- Preventing marijuana possession or use on federal property.
To be clear, marijuana possession remains illegal under North Carolina law. Nonetheless, DOJ’s guidance reflects a fundamental policy shift that further de-prioritizes the federal prosecution of marijuana crimes that do not implicate the above principles. This is further evidenced by distribution of DOJ’s policy memorandum to all United States Attorneys, not just those in states that have legalized some form of marijuana use.
After the 40-year War of Drugs, reform appears to be here, and taking place in incremental, but significant ways. From enactment of the Fair Sentencing Act, which reduced the crack-cocaine sentencing disparity, to Congressional and Executive concerns about mandatory minimum sentences, policy-makers appear to recognize that mass incarceration, which has been fueled primarily by the failed War on Drugs, is unsustainable and devastating to American society.
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