Pubdate: Sat, 22 Feb 2014
Source: Denver Post (CO)
Copyright: 2014 The Denver Post Corp
Author: Mark A. R. Kleinman
Note: Mark A.R. Kleiman is co-author of "Drugs and Drug Policy: What 
Everyone Needs to Know." He has advised Washington state marijuana 
regulators, and wrote this for Bloomberg News.


Federal law makes it a crime to grow, sell or possess cannabis. New 
state laws in Colorado and Washington state permit those activities, 
and officials there are issuing licenses to local companies, which 
are still committing a crime under federal law.

The U.S. Department of Justice announced in August that it would give 
a low priority to enforcement efforts against state-licensed growers 
and sellers in states with "strong and vigorous" regulations, except 
where they involve other activities such as violence or interstate sales.

President Barack Obama has spoken out about the harm done by the 
650,000 arrests a year for cannabis possession (disproportionately 
among young minority men). He recently said that marijuana is no more 
dangerous than alcohol, and that he's willing to let the legalization 
experiments in Colorado and Washington go forward, though he shied 
away from an endorsement of legalization nationally.

Critics, including Rep. John Mica, R-Fla., have attacked both the 
president and Attorney General Eric Holder for sending "mixed 
messages," with Mica using the term "schizophrenic." Some 
Republicans, and some pundits, have charged Holder with having a "pot 
problem," and with disregarding "the rule of law" by choosing which 
laws to enforce. Those criticisms are badly wide of the mark.

While there is much to criticize in both the actions and the 
inactions of the administration on cannabis policy - especially its 
failure to tear down the unnecessary bureaucratic barriers to 
research - critics of the Justice Department decision to let Colorado 
and Washington state go forward with their tax-and-regulation systems 
seem uninformed both about the facts and the law.

As a matter of law, Section 873 of the Controlled Substances Act 
orders the attorney general to "cooperate with local, State, tribal 
and Federal agencies concerning traffic in controlled substances and 
in suppressing the abuse of controlled substances." Most states have 
drug laws that track federal prohibitions. But the voters in 
Washington state and Colorado chose regulation over prohibition as a 
means of dealing with cannabis abuse; if the state regulatory systems 
succeed, there will be less drug abuse than if they fail.

A straightforward reading of the law would therefore seem to require 
the attorney general to cooperate with those state efforts rather 
than trying to disrupt them, if in his judgment doing so promotes the 
purposes of the law in controlling drug trafficking and drug abuse. 
It is Holder's critics who seem to be selective about which laws they 
want to pay attention to.

As a matter of fact, federal drug law enforcement is a relatively 
small part of the national drug enforcement effort; about 80 percent 
of the 500,000 drug offenders behind bars in the U.S. are in state 
prisons and local jails. The Drug Enforcement Administration has 
fewer than 5,000 agents worldwide; Colorado and Washington state 
between them have more than 22,000 state and local police.

The Justice Department could easily have shut down the licensed 
growers and sellers in Washington and Colorado, but it would simply 
not have had the capacity to control strictly illegal production in 
those states without the help of state and local police. Letting the 
reasonably regulated Colorado and Washington systems operate while 
going after participants in California's virtually unregulated 
"medical marijuana" business creates the right incentives for state 
officials and industry participants; if you don't want federal 
attention, keep things under control.

The attorney general could reasonably be criticized for not driving a 
harder bargain with the authorities in Colorado and Washington. He 
could have demanded effective measures to keep legal prices high to 
prevent increases in juvenile cannabis use and heavy use and to curb 
the risk that state-licensed cannabis will end up being sold across 
state lines. He could have (and still could) warn state-licensed 
cannabis sellers that federal laws will be enforced strictly against 
any enterprise that engages in active marketing, as opposed to simply 
setting up a shop and a website and waiting for buyers to appear.

But the choice to work with the states rather than against them was 
both legally defensible and substantively reasonable. Given the 
disproportion between the resources of the DEA and the size of the 
illicit drug markets, federal drug law enforcement is necessarily 
selective. Do Holder's critics propose to increase the DEA budget so 
it can take over all cannabis law enforcement in Colorado and 
Washington? If not, would they propose to reduce enforcement against 
cocaine? Methamphetamine? Heroin? Prescription drugs?

A serious argument can be made for cutting back on federal drug law 
enforcement generally - of the roughly 200,000 people in federal 
prison, about 100,000 are serving sentences for drug offenses. 
Putting more dealers behind bars has resulted in higher drug prices 
or less drug availability.

Some people on the other side of the legalization debate criticize 
the administration for not "rescheduling" marijuana, claiming that it 
doesn't fit the criteria for Schedule I (which also includes heroin 
and LSD). Alas, Congress, in its (somewhat limited) wisdom, hasn't 
created a category for moderately dangerous but medically unapproved 
drugs. There's no legitimate doubt that some of the chemicals in 
cannabis have medical value. But "marijuana" doesn't name a medicine, 
if a medicine is a material of known chemical composition that 
clinical trials have shown, at some specific dosage and route of 
administration, to be safe and effective in the treatment of some 
specific ailment.

The huge variations from strain to strain, and from one means of 
administration to another, mean that clinical trials would have to be 
done on specific cannabis preparations, not on "marijuana" as a 
general category. And it's only those specific preparations that 
would then qualify for "downscheduling."

Even an arbitrary decision to move the plant itself from Schedule I 
to Schedule II (or even Schedule III) would have mostly symbolic 
effects. It would still be a federal offense to grow, sell or possess 
cannabis except as a Food and Drug Administration-approved drug 
available by prescription. Downscheduling would be a consequence of 
clinical trials leading to FDA approval and prescription 
availability, not a substitute for them.

The administration deserves criticism for not tearing down the 
pointless bureaucratic barriers now obstructing clinical research. 
The University of Mississippi's monopoly on the production of 
cannabis for research should be broken, and research projects with 
appropriate clearances shouldn't have to make special application to 
the federal government for a "grant" of a few grams of cannabis: a 
requirement that applies to no other controlled substance, and that 
in effect enables federal censorship of research efforts that might 
lead to unwelcome results.

Those demanding that the Justice Department shut down the Colorado 
and Washington experiments and those demanding rescheduling are alike 
in proposing notional solutions to real problems. We need more 
coherent marijuana policies, but only changes in legislation - the 
province of the Congress, not the executive branch on its own - can 
bring them about.
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MAP posted-by: Jay Bergstrom