A pot proposal for a clueless Justice Department

The News Tribune The News TribuneAugust 25, 2013 

Marijuana is for sale at a dispensary in Nederland, Colo., the other state besides Washington that has legalized recreational use of pot.


Mark Kleiman, the drug policy expert who’s been advising the Liquor Control Board on marijuana legalization, has now tackled an even knottier problem: how to mesh state legalization with federal criminalization.

One of the bigger problems with Washington’s attempt to legalize cannabis in a responsible way is the fact that growing, selling and possessing the drug remain serious crimes under the U.S. Controlled Substance Act. Last year’s Initiative 502 legalized all of the above, authorizing pot farming and commerce under tight regulations enforced by the liquor board.

So far, the Obama administration has shown either shameless cowardice or clueless passivity, or both, in its failure to respond to I-502 and a similar initiative enacted in Colorado.

Does the U.S. Justice Department plan to ignore the federal law and let the state experiments proceed? Is it going to taking a wrecking ball to the regulations after the states adopt them? Should would-be pot entrepreneurs be lining up good defense lawyers?

No clue. It’s been almost 10 months since the initiatives passed, and Eric Holder seems to be doing nothing but watch in befuddlement. The attorney general did go out on a limb a while back, venturing that the Controlled Substance Act remains on the books.

Kleiman, in contrast, appears to be doing more thinking than the entire Justice Department put together.

In an article published Thursday in the Journal of Drug Policy Analysis, he noted the problems of Holder’s pretend-the-issue-doesn’t-exist policy.

For one thing, the next president could decide to take the CSA seriously. In that case, even licensed growers and sellers would be exposed to federal prosecution and property confiscation.

Kleiman suggests a real alternative: formal cooperative agreements that would stay federal enforcement – but only on condition that states come through on key black market controls. He cites a provision in the CSA that might authorize such deals. Ideally, the agreements would be blessed by Congress.

The U.S. government has every right to demand that a state like Washington or Colorado doesn’t let itself become an exporter of cheap weed to states that want no part of loose marijuana laws. The feds can – and should – also demand that legalization not be allowed to drive up cannabis consumption among adolescents.

Washington appears headed in the opposite direction. There are few signs that our elected officials are willing to step up enforcement of state laws against growing, dealing and selling at storefront “medical” dispensaries.

If local governments let the black market thrive while licensed farms and stores are created under I-502, the licensed enterprises might simply expand the net supply of marijuana – perhaps resulting in more interstate trafficking.

As for teenagers, I-502 may already be lifting some of marijuana’s remaining stigma among teenagers. Pot sold in illegal-but-tolerated dispensaries has also been reaching kids, for whom the drug easily leads to addiction and failure in school.

So there’s good reason to consider federal-state bargains that let states keep licensed marijuana enterprises while insisting that they simultaneously battle both traffickers and teenage perceptions that marijuana is harmless. Federal and state law might thus peacefully coexist. Eric Holder, let us introduce Mark Kleiman.

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