Ten Miles Square

Blog

December 14, 2012 12:49 PM Pat Leahy on Colorado and Washington: “Legislative Options Exist”

By Mark Kleiman

Senate Judiciary chair Pat Leahy of Vermont has written a fascinating letter to drug czar Gil Kerlikowske. (Full text at the jump.) It’s much friendlier to legalization than I would have guessed.

Leahy wants to know:

What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?

And he has a suggestion:

Legislative options exist to resolve the differences between Federal and state law in this area and end the uncertainty that residents of Colorado and Washington now face. One option would be to amend the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law.

Main points:

1. Leahy’s concern is not how the federal government is going to enforce the law, but how it is going protect local officials from prosecution.

2. He suggests the legalization of possession up to an ounce at the federal level, “at least” in states where it is legal under state law.

The proposed “remedy” doesn’t solve the larger problem of states licensing individuals and firms to commit federal felonies. Legalizing possession at the federal level would barely matter, except symbolically, because there are vanishingly few possession arrests by federal agents (mostly on federal land or in federal buildings). Growers and sellers operating within the limits of Colorado and Washington law would still be violating federal law.

In addition to suggesting a more dovish view than we have previously heard from Capitol Hill, the letter points up a weird fact: a month after election day, no one has a clue about where the Administration stands on this, or even who’s in charge.

Footnote Leahy’s a liberal Democrat, but there’s also movement on the other side of the aisle, with some Republicans remembering that they’re supposed to be for states’ rights.

FULL TEXT:

December 6, 2012

The Honorable R. Gil Kerlikowske
Director
Office of National Drug Control Policy
Executive Office ofthe President
Washington, DC 20503

Dear Director Kerlikowske:

Last month, voters in Colorado and Washington chose to legalize personal use of up to one
ounce of marijuana and to enact licensing schemes for cultivation and distribution of the drug.

As the states move to implement these new laws, marijuana remains a Schedule I controlled
substance according to the Federal Government. Production, distribution, and possession of the
drug are Federal criminal offenses punishable by imprisonment.

The Senate Judiciary Committee has a significant interest in the effect of these developments on Federal drug control policy. How does the Office of National Drug Control Policy intend to prioritize Federal resources, and what recommendations are you making to the Department of Justice and other agencies in light of the choice by citizens of Colorado and Washington to legalize personal use of small amounts of marijuana? What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?

Legislative options exist to resolve the differences between Federal and state law in this area and end the uncertainty that residents of Colorado and Washington now face. One option would be to amend the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law. In order to give these options
full consideration, the Committee needs to understand how the administration intends to respond to the decision of the voters in Colorado and Washington. I look forward to hearing your thoughts on this matter.

Sincerely,
/s/
PATRICK LEAHY
Chairman

[Cross-posted at The Reality-based Community]

Back to Home page

Mark Kleiman is a professor of public policy at the University of California Los Angeles.