Almost half of states violating federal drug law

Dan Lucas_July 2012_BW

by Dan Lucas

A recent report on the Status of Oregon Marijuana Programs from the State of Oregon’s Legislative Fiscal Office contained this interesting note “There are currently 24 states plus the District of Columbia that have legalized medical marijuana.”

The report also notes “As of November 2014, Oregon became one of 4 states (as of the time of this writing), plus the District of Columbia, that have legalized recreational marijuana.”

I have put the word “legalized” in italics because those states can’t actually legalize marijuana. Marijuana is still very much illegal in the U.S.

Marijuana remains illegal at the federal level – illegal for states to regulate

Last September, the Washington Post reported “Marijuana, of course, remains illegal under federal law.”

As I’ve noted before “Even though marijuana use will be legal at the state level [in Oregon], it remains illegal at the federal level per the 1970 Controlled Substances Act. At the federal level, marijuana is still a Schedule I drug, along with drugs like heroin and LSD. Anyone growing, selling or possessing marijuana is still committing a federal crime punishable by at least up to five years in prison and a fine up to $250,000.

A year ago, I also noted “According to the Thomson Reuters’ legal website FindLaw: ‘State legislatures must create drug laws that are in compliance with the Controlled Substances Act. This means that the state drug laws may be more narrow than federal drug laws, but may not override them or be in conflict with them.’ The Huffington Post reported in 2013, ‘states’ regulation of marijuana is illegal under the Controlled Substances Act.’ Regardless, Oregon, along with a number of other states, has created drug laws that conflict with federal law with regard to marijuana.”

USA Today reported in March of last year “federal law makes no distinction between medical and recreational marijuana — it’s all illegal.”

In Colorado, where marijuana has also been legalized at the state level, the state solicitor general has acknowledged, “No one contends that Colorado law trumps the federal marijuana ban or immunizes anyone from federal prosecution.”

New president may choose to enforce federal drug laws

As I stated a year ago “The current administration in Washington, D.C., has determined that they will not make enforcing existing federal drug laws a priority in the case of marijuana. In August 2013, the U.S. Department of Justice sent out the ‘Cole memo‘ as guidance on how it would prioritize enforcement of federal marijuana drug laws.”

And just because they’re not making it a priority doesn’t mean they’re not still enforcing federal drug laws relating to marijuana in some cases.

But what if the next president decides to start fully following federal law?

What if Republican candidate Donald Trump wins and then chooses to repay NJ Gov. Chris Christie’s endorsement of him by making former federal prosecutor Christie the new U.S. Attorney General? Christie has already said that he’d return to prosecuting in states with legalized marijuana.

What if Democratic candidate Hillary Clinton wins and makes anti-marijuana activist and former congressman Patrick J. Kennedy (D-RI) the new U.S. Attorney General? Kennedy’s uncle Robert F. Kennedy was the U.S. Attorney General in the 1960s under another uncle, President John F. Kennedy.

While Clinton has said she supports reclassifying marijuana from schedule 1 to schedule 2, that would still keep it illegal at the federal level – in the same category as cocaine or methamphetamine.

In addition to resuming prosecution of individuals, could a new U.S. Attorney General also begin prosecuting state officials who are supporting “legalized” marijuana in violation of federal law? Oregon’s state Attorney General, Ellen Rosenblum, was elected with the help of hundreds of thousands of dollars of marijuana lobby money.

Since “states’ regulation of marijuana is illegal under the Controlled Substances Act,” could a new administration in Washington D.C. begin prosecuting Oregon officials at the Oregon Health Authority who regulate medical marijuana? How about other Oregon officials (OLCC?) or even Oregon legislators who have regulated marijuana?

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UPDATE (Jun 2016)Last year, federal prosecutors charged 2,349 people with marijuana possession in the US – it’s still a federal crime