In another victory for pro-legalization forces, a new Obama Administration policy announced today takes a mostly hand-off approach to state marijuana laws.
The news by the U.S. Justice Department comes as a long-awaited response to last year's elections in Colorado and Washington that legalized the use and sale of marijuana.
But the administration's latest guidance affects more than just those two states. It means Arizona's 2010 medical-marijuana law, and the dispensaries now opening across the state, are largely safe from federal intervention.
In a letter that went out today to all 50 states' U.S. Attorneys offices, the Justice Department expands on guidance given in the 2009 "Ogden memo," which paved the way for the first waves of pioneering marijuana-retail shops for medicinal users in California and Colorado, and a 2011 clarification of the policy.
Deputy Attorney General James Cole's new memo states that laws like that of Arizona's can actually help federal goals by "replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues can be tightly tracked and accounted for."
This seems to be a real change, at least in terms of executive branch actions: The feds are saying that, as a strategy to fight crime, marijuana legalization works.
Acknowledging how state laws which legalize cannabis affect the "traditional joint federal-state approach to narcotics enforcement," (he just had to work the word "joint" into this letter, didn't he?) Cole tells federal prosecutors that tightly regulated marijuana use-and-distribution schemes are "less likely" to trigger a federal enforcement response.
While a May 2011 letter to Arizona by former Arizona U.S. Attorney Dennis Burke focused on the vague notion that a "large" cultivation or distribution center would antagonize drug agents, Cole stipulates that "both the existence of a strong and effective state regulatory system, and an operation's compliance with such a system, may allay the threat that an operation's size poses to federal enforcement interests."
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He goes on to say that from now on, size of the operation alone won't necessarily trigger a raid.
Cole's letter expends a lot of ink discussing how the Justice Department remains concerned about "dangerous" marijuana, and how if too much state-regulated pot ends up in the hands of minors or in states that don't want it, the feds might challenge a state's "regulatory structure" itself, in addition to conducting individual busts.
But the important part of the letter isn't the threat of possible enforcement if certain lines are crossed, it's what's allowed. In Colorado, it means pot retail shops will likely be open as early as January. Similar shops may soon follow in Washington state. And medical-marijuana programs in 20 states, plus Washington D.C., will for the most part be left alone.
Ryan Hurley, an attorney with Rose Law Group who represents medical-marijuana dispensaries, says the new guidance seems to indicate that as long as the dozens of medical-pot businesses in Arizona comply with state law, they'll be allowed to operate without fear. The people who have sunk their time and money in a business that defies federal law "should sleep a little easier at night."
Cole's letter dilutes arguments by some Arizona officials who have claimed in court filings that state employees place themselves at risk of prosecution by carrying out the wishers of voters, Hurley says.
He notes that he'll be interested to see whether the policy affects landlord issues like the pending forfeiture of Harborside Health Center in California.
Who knows -- this announcement could even give a boost to a pot-legalization movement in Arizona that hopes to gather enough signatures to put the issue before voters in 2014.
One big problem with the Obama policy, though: It's not permanent. Only Congress could make that happen. A new president could reverse course following the 2016 election, which means the future of legal marijuana remains cloudy.
It's also not clear whether the policy will change the minds of state officials like state Attorney General Tom Horne and Maricopa County Bill Montgomery, who want to see the law overturned. We left messages earlier today for those two -- Horne's office says it's working on a reply, but we haven't heard back yet from Montgomery's camp.
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Arizona U.S. Attorney John Leonardo, through a spokesman, declined comment. Whatever Leonardo's doing today that prevented him from returning our call, we know what he's not doing: Busting state-authorized medical-marijuana dispensaries.
UPDATE: Bill Montgomery got back to us with a comment. We'd asked him two main questions: How might this policy affect the lawsuit against White Mountain Health Center, and what are the legal pitfalls in Obama's doing this as an executive policy move, rather than waiting for Congress. Here's what Montgomery said in an email, via his spokesperson Jerry Cobb:
1. The new policy "has no impact on the White Mountain case and any suggestions to the contrary are a pipe dream."
2. "...we'll just have to wait and see how things play out."