The Justice Department does not have a clear and consistent policy for deciding when to enforce federal drug laws against people who are operating in accordance with state marijuana legalization programs, Congress’s watchdog agency finds in a new report.
In August 2013 the Department of Justice (DOJ) issued a memo directing U.S. attorneys to generally respect state marijuana laws and not target people following those policies unless one of eight identified federal enforcement priorities were triggered. The directive describes how federal prosecutors should avoid interfering with state marijuana programs unless there is evidence that the drug is ending up in the hands of children, being distributed across state lines, contributing to increased impaired driving or violence, among other priorities.
But DOJ officials “have not documented their monitoring process or provided specificity about key aspects of it, including potential limitations of the data they report using and how they will use the data to identify states that are not effectively protecting federal enforcement priorities,” the Government Accountability Office (GAO) wrote in the 50-page report released Monday. “Given the growing number of states legalizing marijuana, it is important for DOJ to have a clear plan for how it will be monitoring the effects of state marijuana legalization relative to DOJ marijuana enforcement guidance.”
The report finds that DOJ regularly consults data on youth drug use, impaired driving and marijuana-related hospital admissions to determine whether to interfere with the implementation of state laws, but that it hasn’t written down a clear policy for how enforcement decisions are actually made in states with full legalization or medical cannabis programs.
GAO interviewed DEA officials and federal prosecutors in Alaska, California, Colorado, Maine, Oregon and Washington to shed light on how the Justice Department determines its enforcement actions. Many reported consulting local officials and, in the case of the U.S. attorney’s office in Northern California, claimed that resources directed toward marijuana enforcement “generally involved gangs and violent crime, which pose significant threats to public safety.”
But actually the U.S. attorney’s office in Northern California has waged high-profile actions against licensed medical marijuana providers who enjoy strong support from local officials and who have not even been accused of gang activity or violence by federal prosecutors.
For example, then-U.S. Attorney Melinda Haag filed a federal lawsuit in 2012 seeking forfeiture of the land and building where Oakland’s Harborside Health Center, the nation’s largest dispensary, operates with support from city officials. In 2013, she filed a similar action against Berkeley Patients Group (BPG), one of the oldest and most prominent medical cannabis providers. The office continued to pursue these cases even after the 2013 DOJ memo was released.
“BPG is a model for regulatory compliance, following every letter of state and municipal regulations,” Victor Pinho, the dispensary’s communications director, told Marijuana.com in an interview. “Berkeley City officials and even our representative, Congresswoman Barbara Lee, have officially recognized BPG for our exemplary work in providing safe access to patients.”
Indeed, in 2014 the city declared an official “Berkeley Patients Group Day” in commemoration of the dispensary’s 15th anniversary, and local officials have pushed back vigorously against what they see as federal law enforcement interference in their local marijuana regulations. “Berkeley Patients Group has complied with the rules and caused no problems in the city,” Mayor Tom Bates said in 2013. “The federal government should not use its scarce resources to harass local law-abiding businesses.” The city also filed motions in court to stop the federal actions against BPG, winning the support of one federal judge.
However, U.S. attorneys in other parts of the country did review their caseloads following the 2013 DOJ guidance and decided to drop some prosecutions, GAO found. “For example, a senior official from the DEA Seattle Division reported closing seven investigations that did not threaten the [federal enforcement]priorities in the first several months after the guidance was issued, whereas officials from the [U.S. attorney’s office] for the Central District of California reported closing some forfeiture cases,” the report states.
GAO reveals that U.S. attorneys from states with laws allowing medical or recreational cannabis have formed a “Marijuana Enforcement Working Group” and participate in monthly meetings to discuss enforcement priorities. Separately, the report says, the White House Office of National Drug Control Policy coordinates periodic meetings of federal agencies to discuss the impact of state legalization laws.
The report was requested by U.S. Sens. Charles Grassley (R-IA) and Dianne Feinstein (D-CA), who have often worked to push back against efforts to reform marijuana policy. Together, they co-chair the Senate Caucus on International Narcotics Control.
Grassley, also chair of the Senate Judiciary Committee, has refused to schedule a hearing for a bipartisan medical marijuana bill. Feinstein campaigned vigorously against a marijuana legalization measure that California voters narrowly defeated in 2010.
The two senators have previously teamed up to demand answers from the Obama administration about what they see as its turning a blind eye to the growing number of states legalizing marijuana. Last January, for example, they asked the Justice and State Departments to explain the domestic and international implications of the federal government allowing states to implement marijuana laws largely without interference.
But they have also pushed DEA and other federal agencies to ease research restrictions on certain compounds of medical marijuana such as cannabidiol (CBD), with some success.
In an email, a Feinstein spokesperson told Marijuana.com that the narcotics caucus will likely hold a hearing on the findings of the new GAO report.
Looking ahead, GAO said that coming up with a clearly articulated plan for its enforcement decisions in legal marijuana states “can provide DOJ with greater assurance that its monitoring activities are occurring as intended.”
The Justice Department has agreed to GAO’s recommendations. The department “will document a plan to identify the various data sources” it uses to determine enforcement actions in legal marijuana states, Michael H. Allen, a deputy assistant attorney general, wrote in a response to the watchdog.
“The Department will also monitor this data, as well as other sources of information, to determine whether states that have legalized recreational marijuana are effectively protecting the Department’s federal enforcement priorities,” he wrote. “To the greatest extent possible, the Department will seek to publicly share the date it receives pursuant to this plan.”
Mike Liszewski of Americans for Safe Access, a medical cannabis advocacy group, said that it is “disappointing to learn that DOJ has no organized monitoring process to keep track of marijuana enforcement actions against state-legal conduct.” In an interview with Marijuana.com he said that GAO’s recommendations would be a step in the right direction but that “the best course of action the federal government can take to clear up the gray area on medical marijuana” would be for Congress to pass legislation officially carving out an exemption from the Controlled Substances Act for people operating in compliance with state medical cannabis laws.