Even in Pot-Legal States, Federal Marijuana Laws Remain

And When Are Federal Laws Enforced in Those States?

Smiling man selecting marijuana in a Colorado store.
Legal Sale of Recreational Marijuana Begins In Colorado. Theo Stroomer / Getty Images

 

Even as more states legalize marijuana for recreational or medical uses, production, sale, and possession of marijuana in those states continue to be violations of federal drug laws.  And as the Government Accountability Office (GAO) reports, the U.S. Department of Justice (DOJ) will, under certain circumstances, arrest and prosecute violators of federal marijuana laws even in pot-legal states.

Background

As of June 2015, Alaska, Colorado, Oregon, Washington, and the District of Columbia had enacted laws legalizing marijuana for both recreational and medical uses.

In all, 23 states and the District of Columbia currently had enacted laws legalizing marijuana in some form.

However, in a classic example of federalism at work, the GAO noted that the U.S. Attorneys will continue to prosecute cases that threaten federal marijuana enforcement priorities, despite state legalization laws.

Is There a 'Federal Ceasefire' on Medical Marijuana or Not?

Just for the record, the current federal penalties for possession of up to 50 kilograms of marijuana or 1 to 49 marijuana plants range from up to 5 years in prison and a fine of up to $250,000 for a first offense, to up to 10 years in prison and a fine of up to $500,000 for a second offense.

What are the Federal Marijuana Enforcement Priorities?

Drug Enforcement Agency (DEA) officials and U.S. Attorneys in six states with medical marijuana laws told GAO investigators that their decisions on enforcement and prosecution of federal marijuana laws were typically based on three main factors:

  • Resources needed to target the most significant public health and safety threats, such as violence associated with drug-trafficking organizations;
  • Addressing the concerns of local law enforcement agencies regarding detrimental social side-effects related to the growth of the commercial medical marijuana industry; and
    • Resources need to implement the DOJ’s current marijuana enforcement policy guidance.

    In an August 29, 2013 memo to all U.S. Attorneys, the DOJ made it clear that they should continue to use their “limited investigative and prosecutorial resources” to “rationally” address what the DOJ considers the most significant threats posed by marijuana.

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    When are Federal Marijuana Laws Most Likely to Be Enforced?

    In most cases, enforcement and prosecution of federal marijuana laws in the marijuana-legal states has been and will continue to be focused on preventing the following significant threats:

    • That marijuana will be distributed to minors.
    • That revenue from the sale of marijuana will go to criminal enterprises, gangs and drug cartels.
    • That marijuana from states where it is legal under state laws will be distributed in other states.
    • That state-authorized marijuana operations will be used as cover for trafficking other illegal drugs, like cocaine or heroin.
    • That violence and firearms will be used as part of the growing and distribution of marijuana.
    • That drugged driving and other “adverse public health consequences” will result from the use of marijuana.
    • That marijuana will be grown on public lands, like national parks, possibly endanger the pubic or government employees.
    • That marijuana will be possessed or used on federally-controlled property.

    GAO Finds Problems With DOJ’s Enforcement Monitoring Process

    According to the GAO, the DOJ molds its marijuana enforcement policies by monitoring the effects of state marijuana legalization in two ways:

    First, the U.S. Attorneys consult with state law enforcement officials about the potential impacts of federal marijuana enforcement policies.

    Second, the DOJ consults with the Drug Enforcement Administration and other federal agencies, including the Office of National Drug Control Policy to assess the marijuana enforcement-related data those agencies provide.

    However, the GAO reported that DOJ had failed to document and report on the federal marijuana enforcement monitoring program as required by its own guidelines.

    “Documenting a plan specifying its monitoring process would provide DOJ with greater assurance that its monitoring activities relative to DOJ marijuana enforcement guidance are occurring as intended,” reported the GAO.

    Providing all of the appropriate federal agencies with a fully documented plan would help the U.S. Attorneys identify state enforcement that are and are not effectively protecting the eight federal enforcement priorities.

    The DOJ agreed with the GAO’s recommendation that it create and share a fully-documented plan specifying its process for monitoring the effects of state marijuana legalization.