Last Tuesday was a banner day for those seeking to ease restrictions on marijuana use.
Massachusetts joined 17 other states that allow the medical use of marijuana. Voters in Washington and Colorado passed initiatives that would make their states the first in the country to allow recreational use of the drug.
One problem: The new initiatives put state law in direct conflict with federal law, under which marijuana is still classified as a Schedule I narcotic.
Officials in Colorado and Washington have said they'll comply with voters' wishes – though they've been up front about the fact that the federal government could make things complicated.
"The voters have spoken, and we have to respect their will," said Colorado Gov. John Hickenlooper the day after the election. "That said, federal law still says marijuana is an illegal drug, so don't break out the Cheetos or Goldfish too quickly."
The Department of Justice, meanwhile, is giving no indications of its plans. "In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance," department spokeswoman Nanda Chitre said last week. "We are reviewing the ballot initiative and have no additional comment at this time."
Some observers speculate that Attorney General Eric Holder may be on his way out, and will cede the decision of how to respond to his successor.
In Colorado, Governor Hickenlooper has until Jan. 5 to amend the state constitution and allow recreational users to possess up to an ounce of marijuana and up to six marijuana plants for private use. But the bigger test will come later. Both ballot initiatives direct their states to set up a system that licenses, regulates, and taxes commercial distributors of marijuana – meaning that for-profit pot shops could start springing up by 2014.
In the immediate term, that means that both states will likely see decriminalized possession pass unchallenged.
"The feds have no interest in [going after individual users]," says Sam Kamin, a law professor at the University of Denver. "They don’t have the resources to do that, and there's nothing they can do from a legal point of view to make the state reverse that decision."
When it comes to street-corner businesses selling marijuana for recreational use, on the other hand, it may be a different story, and President Obama will have to decide how – or if – to confront that more flagrant violation of federal law.
The options available to him and to Congress include the following:
• Focus resources on enforcing federal law where the states choose not to, launching full-scale criminal cases against marijuana growers, dealers, and distributors.
• Focus on non-criminal actions to make life difficult for the distributors who pop up – threatening to seize all their assets, or cracking down on the landlords or banks who work with them, or enforcing the tax code that bars drug distributors from making deductions for business expenses.
• Compromise by focusing only on certain egregious activities – distributors who look like they're shipping marijuana out of state, for instance, or who are selling to minors.
• Direct federal prosecutors to use their discretionary power and largely ignore marijuana cases in those states that allow its use.
• Threaten to withhold federal funds from local and state police offices that don't enforce federal drug laws.
• Amend federal law to specifically exempt states that allow marijuana use from federal drug prosecution.
• Decide to reschedule or deschedule marijuana as a schedule I narcotic.
Many of these options, of course, aren't very likely. Don't hold your breath waiting for the federal government to decriminalize marijuana anytime soon.
And all of them have some complications or challenges associated with them.
For one thing, the federal government has limited resources, and pursuing large criminal cases against distributors or growers is expensive.
If the feds want to crack down on distributors, it's far more likely they'll go less expensive routes, with things like civil forfeiture, says Robert Mikos, a law professor at Vanderbilt University who specializes in federalism and criminal law.
But even that has challenges.
"This drug is so ubiquitous, and there are so many sellers out there," says Professor Mikos. "Even if the federal government goes out and conducts raids against a dozen – which is a big undertaking – you might have hundreds or thousands left untouched." An unintended consequence of such action could be to simply undermine the work Colorado and Washington have done to regulate the businesses, instead driving sellers back underground and making it tougher to enforce whatever regulations they implement.
Still, all those non-criminal actions the feds could take to make like difficult for marijuana distributors "are things the federal government can do and has done with regard to medical marijuana," says Mikos.
In fact, the federal response to the numerous states that have allowed some form of medical marijuana use offers a window onto how confused and piecemeal the terrain can be.
Federal prosecutors have cracked down aggressively, at times, in states like California – the first state to allow medicinal marijuana use and one of the least regulated – while in Colorado, the federal government has largely stayed away, and let the state regulate and deal with the numerous medicinal dispensaries that have popped up since the state legalized medical marijuana in 2001.
In 2009, Attorney General Holder told reporters that "given the limited resources that we have, our focus will be on people, organizations that are growing, cultivating substantial amounts of marijuana and doing so in a way that's inconsistent with federal and state law.” And later that year a deputy attorney general, David Ogden, seemed to reiterate that stance in a memo, which stated that federal law enforcement shouldn't focus "on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."
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.
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."