Pot Matters: State Marijuana Legalization Helps the Feds Focus on Real Crime

The Government Accountability Office (GAO) published a report in December 2015 about state marijuana legalization. The report was requested by Senator Charles Grassley (R-IA), the chairman of the Senate Judiciary Committee, and Senator Diane Feinstein (D-CA). The senators wanted to know what states with legal marijuana were doing to implement their laws, how the Department of Justice (DOJ) was monitoring them and what factors are affecting federal enforcement actions in these states.

In 2013, the Department of Justice issued a guidance to federal law enforcement about the enforcement of federal law in states that have legalized medical and/or recreational marijuana.

The senators wanted to know more about how those policies were being implemented by both U.S. attorneys and federal law enforcement. 

Another aspect of the report is a review of how states such as Colorado and Washington, are complying with the federal requirements for robust regulation in such areas as preventing teenage access, diversion to criminal organizations, diversion to other states, drugged driving and other specific concerns.

The GAO report provides a good summary of the regulatory frameworks in Colorado and Washington. Both states appear to be doing all they can to comply with the federal policy provisions. This report provides a good guide to marijuana’s regulation at the state level, demonstrating how various policy provisions are designed to respond to and mitigate concern over various issues.

The GAO report also recommends that the “DOJ document a plan specifying its process for monitoring the effects of state marijuana legalization, and share the plan with DOJ components.”

The GAO suggests that the DOJ should get more specific about how it will evaluate state compliance with the 2013 policy guidance and inform supervisors, prosecutors, policy analysts and other officials as to how this evaluation is supposed to take place.

The report explains that this is supposed to be a routine practice and treminds the DOJ about administrative requirements to utilize formal internal controls. This makes it easier for agency personnel to implement a policy and contributes to efficiency. It also provides continuity as personnel change over time. While unstated in the GAO report, such controls also protect the department from legal action claiming some future enforcement action was arbitrary, unreasonable or capricious.

Currently the DOJ is following reports from U.S. attorneys, the DEA, and the Office of National Drug Control Policy (ONDCP) about marijuana-related cases and developments in the affected states. But there is no clear and stated method for evaluating such reports with respect to the provisions of the 2013 standards. This is why the GAO has recommended a more precise monitoring program.

This is all pretty standard GAO evaluation material. 

The really interesting part of this report is near the end, where the GAO summarized what the DOJ field offices have told them about factors that affect their enforcement decisions.

The field offices report they have limited resources, and they need to prioritize how they are used. 

The U.S. Attorney’s Office for the Northern District of California points out they have other federal crimes to prosecute, “including non-drug crimes, such as health care fraud, investment fraud and computer hacking. “ 

The U.S. Attorney’s Office for the Eastern District of California, one of the largest marijuana producing areas in the United States, reports that “the largest portion of the district’s drug cases involve methamphetamine cases.” This area is also a primary source of methamphetamine production and transport, and officials explain that this “poses a more significant threat to public health and safety in the district than marijuana.” Similar comments were made by the DEA's Seattle field office.

In San Diego, the DEA field office and the U.S. Attorney for the Southern District of California report that their priority is “addressing the major poly-drug-trafficking organizations involved in these drug operations and the violent crime that is typically associated with them.”

The DEA in Alaska notes that most drug trafficking organizations sell several illegal drugs and that it has “generally focused its investigative resources on drugs other than marijuana, including cocaine, heroin, and methamphetamine.”

It would be naive to believe that the DEA, for example, has given up its opposition to the legalization of marijuana. 

Nonetheless, the political reality of state-level legalization, along with the current policy of the Department of Justice, has forced federal law enforcement to devote its attention to more serious and deserving targets. In other words, state marijuana legalization is forcing federal law enforcement to devote more attention to real crime.

(Photo Courtesy of Marijuana.com)