If you are in Washington, D.C., you can, without criminal penalty, possess and smoke marijuana, but not in public. You can grow it, you can also grow marijuana. You can’t sell it, but you can give it away. If you cross the Potomac River into Virginia, it is illegal to possess, grow or sell marijuana. If you drive into Maryland you could receive a civil fine for possession of up to 10 grams of marijuana and be arrested for possessing greater amounts. Even in Colorado where marijuana is notoriously fair game, you can still be fined if you are caught in possession at the Denver Airport, although, as noted by Forbes, the chances of getting caught are relatively small. And let’s not forget that under federal law possession, distribution and cultivation of marijuana remains illegal. Confused yet?
In the Begining
In 1970 Congress passed the Controlled Substances Act (“CSA”) which regulated the manufacture, possession and sale of a variety of drugs, chemicals and plants. The CSA classified drugs, chemicals and plants into five different schedules based upon several factors related to the substance’s history and potential for abuse, impact on the public health and state of scientific knowledge of the substance. Marijuana was classified as a Schedule I substance, along with heroin and LSD, to name a few, and remains a Schedule I substance to this day. Schedule I substances are subject to the most stringent restrictions. Under the CSA, the Attorney General of the United States has the ability to reclassify or add or remove a substance from a schedule based on certain evaluations and findings.
Over time, the body of medical research on marijuana grew and public opinion concerning its use changed to a point that in 1996 California became the first state to legalize the medical use of marijuana. By the year 2000, seven other states followed suit. Then in 2012 two states, Colorado and Washington, legalized the recreational use of marijuana. Then all hell broke loose! The full legalization of marijuana is now a mainstream political issue confronted by states across the U.S.
The Cole Memorandum
With a growing number of states legalizing the use of weed in one form or another, eyes turned to the Federal government, since the CSA was still law of the land. Starting in 2009, the Federal government began to lower the priority of prosecuting marijuana cases and in August 2013, then Deputy Attorney General James Cole issued a memorandum that has become definitive guidance to all federal prosecutors concerning enforcement of the CSA and other laws pertaining to marijuana activities. This is widely known as the “Cole Memorandum.” The Cole Memorandum outlined eight priorities for Federal enforcement of marijuana laws:
- Preventing the distribution of marijuana to minors
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states
- Preventing state authorized marijuana activity from being used as a cover or pretext for trafficking of other illegal drugs or other activity
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands
- Preventing marijuana possession or use on federal property
The Cole Memorandum acknowledges that state laws have, to date, been consistent with these policies and advises that if states demonstrate vigorous enforcement of state laws, federal enforcement should focus on these eight priorities.
In addition to Colorado and Washington, the recreational use of marijuana is now also legal in Oregon and Alaska, as well as in the District of Columbia and, as of January 1, 2016, in the Flandreau Santee Sioux Reservation in South Dakota. Medical use of marijuana is now legal in 14 states, plus the District of Columbia, Puerto Rico and Guam. In addition, marijuana is decriminalized, in one form or another, in at least 12 other states. In Texas, decriminalization only applies in Houston and Dallas. What? Not Austin?? Go figure. The debate over legalization in Texas did get interesting, with one Tea Party State Representative, David Simpson, quoting scripture to justify in part, his reason for supporting decriminalizing and legalizing marijuana. Representative Simpson explained his views in an interview in the Daily Beast in May, 2015.
Laws to legalize have been introduced in almost every state legislature. Of course laws do, and will continue to vary widely from state to state, in terms of the who, what, where, why and when of what is legal, including the state agencies that are in charge of enforcing the rules. For example, in Colorado, implementing the law is generally left to the Colorado Department of Revenue. In Washington, the law contains greater specificity and regulation and administration is under the jurisdiction of the Washington State Liquor and Cannabis Board. Other states are grappling with their own regulatory and enforcement schemes. Also, there is the question of whether the Federal government will address the reclassification of marijuana under the CSA. With the presidential elections in full swing, this will remain and evolving issue well into the future.
Given the differing views on whether and how to legalize marijuana, one thing is certain, the evolution of marijuana laws in the United States will be not go smoothly. To quote the late, great Bette Davis in All About Eve, “fasten your seat belts, its going to be a bumpy night!”