The live-action policy development surrounding marijuana use is a good time for headline writers and anyone who likes stoner jokes. It is also rich fodder for those interested in how various jurisdictions interrelate and how mores, laws and norms evolve to reflect changing values. It is a complicated process that lawmakers at all levels are right to address with caution.
Colorado is at the leading edge of the discussion, with voters in November having soundly supported legalizing marijuana cultivation, possession and sale for recreational purposes. From a values standpoint, this was a relatively short leap from the legalization of medicinal marijuana use – legalized by voters in 2000. Let’s face it: the “severe pain” that 94 percent of the 106,817 current medical marijuana cardholders in the state name as the primary symptom they treat with marijuana is a handily difficult to define condition. That’s just fine, though. Board-certified physicians – 800 of them across the state – are playing along and there is little if any harm in the whole package. Those who are legitimately medically helped by marijuana can enjoy that treatment option and those who enjoy its effects on their “pain,” or what have you, can as well. There is an effective regulatory framework tracking the production and sale of the “medicine,” and all is well across the land, as far is it goes.
That medicinal shoehorn served as a lovely proxy for what is really going on: Marijuana is transitioning into the mainstream of mind-altering substances, joining its legal – but nonetheless taboo – brother, alcohol, in the social and policy arenas. That is not necessarily a simple leap to take, though. Congress, under the 1970 Controlled Substances Act, identifies marijuana as a Schedule I substance – that is one that meets the following no-good criteria:
“The drug or other substance has a high potential for abuse.
“The drug or other substance has no currently accepted medical use in treatment in the United States.
“There is a lack of accepted safety for use of the drug or other substance under medical supervision”
Among its cohorts on the schedule are heroin, MDMA, LSD and peyote. Notably, cocaine and amphetamines are on Schedule II – making them acceptable for medical use, albeit in limited applications. So marijuana, by act of Congress, is ganja non grata at the federal level. What’s a state to do? Wait for federal government guidance on just how seriously it takes its own laws, apparently.
That guidance on recreational marijuana laws came, finally, on Thursday and it is much like that issued previously on medicinal use. And while the memo from the Justice Department provides clarity in its enforcement priorities, it is just as clear in saying that marijuana use remains illegal at the federal level. In articulating the things the Justice Department is most concerned about – keeping marijuana out of minors’ hands and bodies, stopping marijuana dealing and related violence by gangs and cartels, preventing sales in states where it is not legal, using state licenses to engage in illegal trafficking, driving while under the influence of marijuana, growing or possessing marijuana on federal lands, for example – the attorney general’s office has clarified the landscape while leaving considerable haze on the enforcement.
The memo relies heavily on the states to regulate marijuana in keeping with the Justice Department’s priorities, and in so doing creates a workable federalist balance that recognizes states’ rights while still flexing federal muscle. But there is a clear message that if states and localities fail to properly regulate and enforce laws supporting those priorities, the Justice Department reserves the right to take action.
“If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself, in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms,” the memo said.
Given that clear but still somewhat squishy guideline – around a federally illegal substance – it is fair for both the state and its localities to err on the side of caution in crafting regulations. La Plata County commissioners came under fire this week for enacting a temporary ban on recreational marijuana sales, and while critics’ complain about dithering in implementing the voters’ mandate is somewhat legitimate, there are more complex relationships and dynamics at play. The county’s desire to be extra prudent in crafting its regulations is defensible and responsible, and while it could be read as a violation of voters’ will, a more generous assessment is that the commissioners are exercising sound policy development skills.
The times, they are a-changing – and quickly. Recreational marijuana users can now partake without fear of punishment, and the convenience of retail purchase is just around the corner. Getting the details right on the legal side is important, though, and since the whole system is taking place because of a giant federal wink and nod, patience and precision is appropriate.
Megan Graham is a Herald editorial writer and policy analyst. Reach her at meg@durangoherald.com.
