Pat Leahy on Colorado and Washington: “Legislative options exist”

Senate Judiciary chair Pat Leahy of Vermont has written a fascinating letter to drug czar Gil Kerlikowske. (Full text at the jump.) It’s much friendlier to legalization than I would have guessed.

Leahy wants to know:

What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?

And he has a suggestion:

Legislative options exist to resolve the differences between Federal and state law in this area and end the uncertainty that residents of Colorado and Washington now face. One option would be to amend the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law.

Main points:

1. Leahy’s concern is not how the federal government is going to enforce the law, but how it is going protect local officials from prosecution.

2. He suggests the legalization of possession up to an ounce at the federal level, “at least” in states where it is legal under state law.

The proposed “remedy” doesn’t solve the larger problem of states licensing individuals and firms to commit federal felonies. Legalizing possession at the federal level would barely matter, except symbolically, because there are vanishingly few possession arrests by federal agents (mostly on federal land or in federal buildings). Growers and sellers operating within the limits of Colorado and Washington law would still be violating federal law.

In addition to suggesting a more dovish view than we have previously heard from Capitol Hill, the letter points up a weird fact: a month after election day, no one has a clue about where the Administration stands on this, or even who’s in charge.

Footnote Leahy’s a liberal Democrat, but there’s also movement on the other side of the aisle, with some Republicans remembering that they’re supposed to be for states’ rights.

FULL TEXT:

December 6, 2012

The Honorable R. Gil Kerlikowske
Director
Office of National Drug Control Policy
Executive Office ofthe President
Washington, DC 20503

Dear Director Kerlikowske:

Last month, voters in Colorado and Washington chose to legalize personal use of up to one
ounce of marijuana and to enact licensing schemes for cultivation and distribution of the drug.

As the states move to implement these new laws, marijuana remains a Schedule I controlled
substance according to the Federal Government. Production, distribution, and possession of the
drug are Federal criminal offenses punishable by imprisonment.

The Senate Judiciary Committee has a significant interest in the effect of these developments on Federal drug control policy. How does the Office of National Drug Control Policy intend to prioritize Federal resources, and what recommendations are you making to the Department of Justice and other agencies in light of the choice by citizens of Colorado and Washington to legalize personal use of small amounts of marijuana? What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?

Legislative options exist to resolve the differences between Federal and state law in this area and end the uncertainty that residents of Colorado and Washington now face. One option would be to amend the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law. In order to give these options
full consideration, the Committee needs to understand how the administration intends to respond to the decision of the voters in Colorado and Washington. I look forward to hearing your thoughts on this matter.

Sincerely,
/s/
PATRICK LEAHY
Chairman

Comments

  1. says

    What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?

    Rather a loaded question, no?

  2. says

    …a month after election day, no one has a clue about where the Administration stands on this, or even who’s in charge.

    I suspect that’s because they are working overtime on their judicial appointees.

    All seriousness aside though:
    Mr. Obama is in a mean situation here. On the one hand, he is smart enough to know running small legalization experiments with these two states makes sense.
    But he also knows that a sizable % of the country will say: See, make a black guy president and the first thing he does when he gets a chance? Makes pot legal.
    The question is how much sensitivity he has to that particular rightwing Wurlitzer soundscape. My hunch is: More than perhaps he should.

  3. Brett Bellmore says

    “The proposed “remedy” doesn’t solve the larger problem of states licensing individuals and firms to commit federal felonies.”

    No, the problem here is a federal government which lacks the general police authority making felonies out of acts occurring within a single state’s boundary. Were enumerated powers doctrine still in force, and the Constitution’s limits on federal power being enforced, there wouldn’t be any federal felony involved for the state to legalize.

    State and federal powers are not supposed to overlap in a fashion which permits conflicts of this sort, they are a symptom of federal usurpation of power.

    • Freeman says

      Exactly. It took a Constitutional amendment to prohibit alcohol at the national level, and another one to lift the ban. But the American government doesn’t play by the book any more. The War On (some) Drugs is yet another war waged without the requisite congressional declaration of war.

      Who can maintain a healthy respect for the rule of law while observing that the government is unwilling to follow it’s own rules?

  4. Mark Kleiman says

    For once, I agree with Brett. Good policy or bad, the provisions of the CSA criminalizing entirely intra-state (even intra-household) activity can’t be justified by any reasonable reading of the Commerce Clause. Insofar as growing your own at home affects interstate commerce, it does so by reducing interstate commerce in the commmodity the Congress set out to ban.

    • Brett Bellmore says

      And the commerce clause doesn’t authorize regulating things which effect interstate commerce anyway, it authorizes regulating the interstate commerce itself.

    • rachelrachel says

      I’m afraid I must disagree; I see very little sign that there’s much of a popular movement to end the war on drugs.

      What I see is a growing sentiment to move cannabis from the list of drugs that are bad to the list of drugs that are okay, like cigarettes, coffee, and liquor, so you’ll be able to go to the pot store and buy a baggie of pot.

      I don’t see widespread support for changing the policy on cocaine, heroin, and the other drugs, which currently eat up most of the drug enforcement dollars. Where’s the popular movement to do something about these low-level offenders who are clogging up the prison system?

        • rachelrachel says

          A few voices, but hardly We the People rising up. Not much is being said that wasn’t being said twenty years ago. LEAP didn’t exist back then, of course, but that’s an organization of law-enforcement insiders, hardly a popular movement.

          We could do as Bennett suggests and restore discretion to the judges, and the war on drugs would still be pretty much intact.

          Legalization of pot is becoming a more widespread view, mostly (I think) because there are a lot of pot smokers out there. What happened in WA and CO will happen in other states and the Federal government will have to take notice. Does this mean serious policy reform for drugs that are not as widely used, or does it mean pot will become more or less normalized and the war on other drugs will continue as before?

          There’s a widespread perception (one that I share) that the war on drugs has failed. But support for doing anything but more of the same is lacking.

          • Freeman says

            And Rosa Parks was just one woman on a bus. Just sayin….

            Keep watching. There is a real movement underfoot.

      • Dan Staley says

        I’m afraid I must disagree; I see very little sign that there’s much of a popular movement to end the war on drugs.

        Look around some more. Read some correspondence from folks near the border. I suspect soon (a decade?) you will see a budgetary movement as well.

      • Brett Bellmore says

        You won’t see much of a popular movement, until support for it is irresistible; People are afraid to speak their minds on this subject, and nobody more so than politicians. A lot of people, maybe even already a majority, want an end to this idiocy, but won’t say so because they think they’re in the minority.

        Colorado was the first seepage through the levy. Soon it will come down faster than anybody can imagine.

        I think it would have happened already, except that the drug warriors have more effective tools for manipulating public opinion than they had during the first Prohibition, and they’ve used them to reenforce the preference falsification.

  5. KLG says

    Freeman beat me to it. Just finished this highly recommended reading. Remember when Barack Obama said he was going to return to the “rule of law”? It was only a little over four years ago. Ummm, not so much as it turns out.

    • Dan Staley says

      It might be worth it to fork over the rather large amount for the latest edition of Lapham’s Q…

  6. paul says

    Just a correction here. Leahy is not really a liberal, except in the way that Obama is a socialist. He’s an intellectual-property maximalist (or at least willing to play one in his day job), and fairly quiet on civil liberties (albeit clearly not on board with sharp moves toward more of a security state.) So this letter may be more of an indication of a sea change than appears. Or it could be a way of testing the waters for similar initiatives in his home state.

    • rachelrachel says

      In 2010 Leahy got a 100% rating from the Americans for Democratic Action, which is consistent with his ratings in earlier years, and he was hailed as one of five “heroes” in the Senate. (I’m not sure why 2011 ratings aren’t available on their website.)

      People who describe themselves as liberal think he’s a liberal.

      • paul says

        That just shows how far the bar has been lowered. Nixon would likely be a liberal by current standards too. (OK, he’d have to moderate the racism and antisemitism a bit)

    • matt w says

      Leahy is also a huge Deadhead, so if his private beliefs were far out in front of the social consensus on any issue, drug legalization might be a good bet. Not that I’m saying anything about his habits, just that you’d figure a Dead fan wouldn’t be absolutely repulsed by pot.