As the Justice Department completes its review of Colorado and Washington State and determines if corrective action — up to and including a lawsuit against both states — is warranted for last November’s vote to legalize marijuana, eight former heads of the Drug Enforcement Administration (DEA) has urged the president to act quickly to return the states into compliance with federal law.
In a letter from the group to Sens. Patrick Leahy (D-Vt.) and Chuck Grassley (R-Iowa), the ex-DEA chiefs — John Bartels, Peter Bensinger, Robert Bonner, Thomas Constantine, Asa Hutchinson, John Lawn, Donnie Marshall and Francis Mullen — argued that the federal government must move quickly to squash these new laws. “If they don’t act now, these laws will be fully implemented in a matter of months,” Peter Bensinger, a member of the group, told the Associated Press.
“Our earlier attempts to have the Attorney General announce that he will enforce the Controlled Substances Act in Colorado and Washington have fallen upon deaf ears,” former DEA administrator Peter Bensinger said in an advisory sent to Raw Story. “Sadly, at this point we can only conclude that it is probably not [United States Attorney General] Eric Holder’s decision.”
There are reasons to think, however, that the ex-DEA chiefs’ motivation in pressuring the administration exceeds beyond simply preserving the nation’s health.
Ethan Nadelmann, executive director of the Drug Policy Alliance, said: “The former DEA chiefs’ statement can best be seen as a self-interested plea to validate the costly and failed policies they championed but that Americans are now rejecting at the ballot box,” he said in an advisory. “They obviously find it hard to admit that – at least with respect to marijuana – their legacy will be much the same as a previous generation of agents who once worked for the federal Bureau of Prohibition enforcing the nation’s alcohol prohibition laws.”
It may be more personal than this. Bensinger and Robert duPont — the White House drug czar under presidents Nixon and Ford who also signed the letter to the senators — are now the principals of Bensinger, duPont & Associates, a company that specializes in workplace drug testing. Many see this as a clear conflict of interest.
“These individuals still have financial and professional interests in ancillary businesses and endeavors that benefit from keeping marijuana illegal,” said Paul Armentano, deputy director of NORML, a pro-marijuana advocacy and lobbying group. “So there’s a lot of bluster to imply the sky is falling, while to the rest of the public this is no big deal.”
In defense of the possible conflict, duPont and Bensinger argued that they signed the law in consideration of the law and their personal views on it, and not business motivations. Bensinger argues that only 15 percent of his company deals with drug-related activity. DuPont further stated that the company only consults its clients on how to conduct drug testing; it does not conduct them itself.
The Justice Department’s position
Last November’s vote in Colorado and Washington State to legalize cannabis placed the federal government squarely in opposition to the states. Cannabis — the umbrella describer for marijuana and marijuana-derived substances — is a controlled and scheduled substance under the Comprehensive Drug Abuse Prevention and Control Act of 1970. It is illegal to possess, use, buy, sell or cultivate marijuana in any quantity under federal law.
In the Justice Department’s pursuit of enforcing federal drug laws, there is a real fear that the federal government’s intention to enforce its own laws will be perceived as an attack of states’ right to self-govern, which may translate into political hostility in regard to future elections. While the Obama administration has aggressively opposed and shut down medical marijuana dispensaries in California and other states, the administration has not — as of yet — announced an official stance on Colorado and Washington State’s legalization of recreational marijuana use.
Earlier this month, United States Attorney General Eric Holder announced he will officially respond to the legality of Colorado and Washington State’s posture on cannabis possession. The Obama administration is being pressed internationally, as the United States is a signatory of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances, which are the legal backbone behind the international War on Drugs.
The White House’s position
In a December interview with ABC News, the president stated that “it would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal,” echoing the official posture the administration takes toward medicinal marijuana buyers. “We’ve got bigger fish to fry.”
“This is a tough problem, because Congress has not yet changed the law,” Obama said. “I head up the executive branch; we’re supposed to be carrying out laws. And so what we’re going to need to have is a conversation about, How do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal?”
Obama has conceded that public opinion is changing and that the federal government no longer has the resources to commit to enforcement. However, the administration has not rolled over on this issue yet. The federal government continues to raid cannabis providers, including state-licensed dispensaries.
“I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana – and the reason is, because it’s against federal law,” Obama told “Rolling Stone” in an interview early last year.
Article VI, clause 2 of the United States Constitution decrees that the Constitution, federal treaties and federal statutes “the supreme law of the land.” Under the strict interpretation of the law, Colorado and Washington State have acted illegally in legalizing marijuana. However, in practicality, things are not so simple.
Many states have, in part, decriminalized marijuana possession. In New York state, possession of 25 grams of marijuana or less is treated as a civil violation for the first and second offense. In California and Massachusetts, possession of less than one ounce of marijuana is dealt with a civil infraction. In Alaska, it is legal to have up to two ounces of marijuana for personal use or less than 25 marijuana plants.
Fourteen states have decriminalized marijuana possession to some degree, and 18 states and the District of Columbia — a federally-governed territory — allow the use of medically-prescribed marijuana.
Changing opinions
According to a recent Reason-Rupe Public Opinion Survey, 72 percent of all Americans feel that the federal government should not interfere in states that have legalized marijuana use. Resistance to federal intervention against legalization seems to be on the rise. Forty-seven percent of Americans favor the legalization of recreational use of marijuana, 53 percent feel that marijuana should be treated the same as alcohol (restricted sales based on age, licensed producers, manufacturers’ requirement to pay taxes, etc.) and 68 percent believe that state-legal cannabis growers should be left alone.
A 2012 Public Policy Polling survey commissioned by the Marijuana Policy Project found that a plurality of Americans (45 percent) believe marijuana is safer than alcohol, and I suspect that most of the 12 percent who said they were not sure would say it is at least no more dangerous.