State laws legalizing marijuana put Obama in a bind: What are his options?
Voters in Massachusetts, Washington, and Colorado have multiplied the points of conflict between state and federal marijuana laws, making it harder for Obama to formulate a consistent policy.
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But since then, the department has backtracked somewhat, and in a few cases has gone after larger-scale marijuana growers and distributors, even when they seemed to comply with state law.Skip to next paragraph
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The recreational use of marijuana allowed in Colorado and Washington is an even more direct challenge to the federal government, and Professor Kamin of Colorado notes that simply choosing to look the other way could lead to some gross injustices in terms of who gets prosecuted.
"If you’re sending some people to jail for scores of years for something that doesn’t apply in Colorado, it's not fair," Kamin notes. "You need some clarity, some consistency."
Kamin believes that the most likely action the federal government may take is some form of negotiation, in which the feds promise to let Colorado continue to regulate medical dispensaries of marijuana without interfering – provided that they refrain from letting commercial shops for the recreational drug spring up.
"They could say, 'we’re not going to let you open 1,000 or 10,000 for-profit marijuana stores, where you open them in Vail or Breckenridge and have people fly in for a pot weekend. But we're open to the idea that some people use it for medicine,' " Kamin says.
The federal government could also opt to take Washington and Colorado to court over their laws, though Kamin and Mikos believe that's less likely – and very risky for the feds.
"All the state is really doing here is saying that under state law we won’t punish you if you sell marijuana," says Mikos."The federal government can't force a state to punish its residents, or to enforce federal law."
Mark Osler, a former federal prosecutor and a law professor at the University of St. Thomas Law School in Minnesota, believes that the federal government should simply employ prosecutorial discretion, for which their is a long history, and err in favor of federalism – essentially respecting states' rights to make their own laws in this area.
Where it may get complicated, he notes, is in the sort of complex federal cases that sometimes arise. At times, the best charge federal agents may have against someone involved in a narcotics case may be marijuana possession, and in order to pressure that person to cooperate with the government, they'll threaten to keep that charge. Would they still do it? Or would they go after a large-scale grower in Washington, if that state develops a permitting process and starts to license people?
Still, Professor Osler believes that any real effort by the federal government to go after people complying with all the state regulations will be highly unpopular and a poor way to direct limited resources. But, he doesn't expect a hands-off decision to be announced with a lot of fanfare.
"Usually tough on crime decisions are made with trumpets blaring," says Osler. "Choices to employ discretion are made very quietly."