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August 27, 2013 8:51 AM The Very Slow Legalization of Marijuana

By Mark Kleiman

When I saw Dylan Scott’s story reporting that some Colorado officials were claiming “tacit approval” from the Justice Department for going ahead with the taxed and regulated cannabis market approved by Colorado voters, I was puzzled about exactly what was being claimed.

On the one hand, the Justice Department, in the many months since the Colorado and Washington initiatives passed in November, has not publicly announced that it is going to shut down the Colorado and Washington systems entirely. By its silence, the Department has allowed the state governments to proceed with time-consuming and expensive preparations. If the Department were now to announce that it was asking the courts to find that the Controlled Substances Act pre-empted the entire scheme, or that it was going to ask for injunctions against license applicants, that would certainly be a dirty trick. If that’s what “tacit approval” means, the substance of Scott’s story is correct, but it doesn’t contain much news.

Nor did the actual sourcing and quotations seem to suggest otherwise. Of the two sources, the State Senator is very unlikely to be privy to whatever’s being said behind closed doors, and the nameless “official” doesn’t really say anything except what I said in the paragraph above: The feds know what’s going on, and haven’t yelled “Stop!” yet, so it’s unlikely they’re going to yell “Stop!” tomorrow.

None of that implies that the people getting licenses to grow and sell pot in Colorado and Washington – licences, that is, to commit felonies under Federal law – would be safe from prosecution.

On the other hand, it was also possible that Scott had learned something I didn’t know about actual negotiations, and that there had been a real nod-and-wink promise that the feds wouldn’t mess with state-licensed activity unless it involved real bad guys or interstate shipments. That would have surprised me, but I couldn’t rule it out.

My membership card in the Blogger’s Guild forbids me, of course, from Picking Up the Damned Phone and doing actual reporting. But I was a drug policy analyst a long time before I became a blogger, and some of the people I talk to in my policy-analyst hat actually know what’s going on.

So I can now say with confidence that no one at DoJ has given the government of Colorado any promises of non-interference with the activities of Colorado’s licensees. There have been discussions involving state and federal officials, but no negotiations of the “If you do X and Y we’ll let your people alone” variety. (I don’t have direct knowledge with respect to Washington State; any contacts with the feds are the province of the Governor’s office and the state AG’s office rather than with the people I know at the Liquor Control Board. But when I spoke of “negotiations” with DoJ, a state official hastily corrected that to “discussions.”)

That seems to me like a big missed opportunity; had the federal government presented the two state governments with list of demands, as conditions of federal acquiescence with the new commercial cannabis-distribution systems, there would have been very strong incentives pushing state officials to meet those demands. Once Washington and Colorado have regulations in place and start issuing licenses, retro-fitting the terms of a bargain into that process gets much, much harder.

The right way, in my view, to implement such a bargain would be through the “contractual agreements” provided for in 21 U.S.C. 873.

The problem with stories such as Scott’s is that they will be eagerly seized on by legalization advocates. When and if the DEA starts busting state-licensed growers and dealers, we will hear the same screams of “bait and switch” we heard when the feds, having announced that they didn’t intend to go after patients and caregivers in the medical marijuana markets but would concentrate on large, for-profit operations, in fact busted some large-scale, for-profit growers in California.

No, that doesn’t mean I think every target of those raids deserved it, merely that the charge of “double-cross” was utterly bogus, and known to be so by those familiar with the situation. The people I chiefly feel sorry for are those who believed that advocates’ claim that the feds had given everyone a green light, and found out the hard way they were wrong.

So: If you’re considering entering the cannabis business in Washington or Colorado, you should do so only if you’re willing to take a risk – an unknown risk, and only partly controllable by keeping your actions discreet – of spending a long spell behind bars.

And: If you’re an activist, or have any influence with the Administration or with Members of Congress, don’t imagine that the job of reconciling federal law with state-level legalization is more or less complete and that you can now relax. All the hard work remains to be done.

[Cross-posted at The Reality-based Community]

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

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