January 8th, 2018

Marijuana: Trying To Stop The Tide

Predictably, the US Attorney General has rescinded the “Cole Memo,” which articulated the Obama administration restrained policies regarding the enforcement of federal marijuana laws. His memo provides new guidance to federal prosecutors encouraging them to take legal action in those states that have legalized marijuana use despite its federally illegal status.

The non-specific nature of the memo means that no one knows how it will actually be implemented, so detailed predictions are not possible. What is definite is an increase in uncertainty and anxiety about its use in those states. This may well have the effect of reducing some of the momentum that has been building to bring the marijuana trade out of the shadows of criminality.

What is also clear is that federal law enforcement does not have the resources to pursue this issue on their own; the active cooperation of state and local officials is critical. The immediate reaction of officials in affected states suggests that such cooperation will not be forthcoming. In the late 1990’s Bush-era SWAT-like attacks by Federal agents on medical marijuana facilities failed to stem the rise of use in California and other states. My expectation is that a renewal of aggressive Federal efforts will probably galvanize resistance. It is hard for me to imagine, however, that this will be enough to break the legislative logjam blocking a reasonable change in Federal marijuana laws.

When Harry Anslinger succeeded in his effort to make marijuana illegal, beginning with the Marijuana Tax Act of 1937, use of that substance by the public was much more limited – a very different situation from 2018. In a 12th Century account, King Canute demonstrates to his courtiers his inability to stop the tide (although interestingly the story is now often told with Canute being represented as believing that he can, in fact, accomplish this). The current Attorney General might benefit from such counseling.

Readers wanting to read more good commentary might like John Hudak’s recent editorial. providing some context for this issue. In addition, I would suggest a Washington Post editorial recommending decriminalization, which has been the conclusion of every government commission that thoughtfully examined the problem since the 1890’s.

The greatest danger from an implementation of the new marijuana policy would be to further divert scarce resources away from dealing with the “opioid epidemic.” Although I believe that treatment should be the dominant intervention for that problem, law enforcement does have an important role to play. Regarding treatment, other than FDA approval of an injectable formulation of buprenorphine, no substantial positive steps have been taken by the Administration since the release of the report of the President’s Opioid Commission.

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