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High Times Ahead: The Political Side Effects of Tolerating Legal Pot

| September 5, 2013

The Feds' pot copters are taking a breather.

The Feds’ pot copters are taking a breather.

By Sanho Tree

Attorney General Eric Holder’s recent announcement that the federal government wouldn’t challenge Colorado and Washington state’s ability to implement a legal regulatory system for adult recreational marijuanause marked a tremendous political victory for reform if not a definitive legal victory.

Sanho Tree

Sanho Tree

Technically, pot remains illegal across the nation. But Holder went as far as he could under our system of checks and balances.

While the Executive Branch can’t negate the laws made by Congress, the Justice Department found a way to “deprioritize” some of them. Holder told our 93 U.S. Attorneys — who have traditionally enjoyed a wide degree of latitude and deference in deciding how to uphold federal law in their districts — to exercise prosecutorial discretion. They were told to make marijuana enforcement a low priority when those cases don’t violate an eight-point checklist for more serious federal enforcement priorities.

In other words, the authorities don’t have to crack down on marijuana transactions in states where they are legal unless someone is doing something like selling to minors or running a drug cartel. While Holder can urge U.S. attorneys to focus on more serious cases, he can’t legallyorder them to do so. That renders his guidance essentially voluntary. Prosecutors can theoretically enforce any federal law on the books despite what individual states decide.

The handful of prosecutors who have waged a campaign against medical marijuana in California and other western states may continue to legally enforce existing laws if they choose to do so. The political implications, however, are tremendous both at home and abroad.

By tolerating legalization in Colorado and Washington, the federal government is at odds with the UN treaties governing the international drug war. Since the United States used to be the drug war’s chief global advocate, this retreat on marijuana legalization sends a powerful message to the rest of the world.

other-wordsMany Latin American and European nations have long wanted to overhaul their drug laws but had been afraid of running afoul of the UN’s drug conventions and perhaps triggering U.S. reprisals. Now they have much more political space to consider alternative policies. That could make a difference in Uruguay, which is on the brink of legalizing recreational marijuana.

Holder has essentially placed a ticking time bomb on the GOP’s doorstep that could detonate during the 2016 presidential elections. Because federal law remains unchanged, the next administration can reverse his guidance on a whim and resume the war on pot.

All Republican candidates will be asked during the primaries where they stand on this key issue and any answer they can give will infuriate at least one of the GOP’s powerful factions. A nascent civil war is brewing between the social conservative and the libertarian wings of the party. Neither faction is known for compromising so this question can become a powerfully divisive wedge issue that could accelerate and exacerbate the GOP’s civil war. Whichever side wins, it will send the nominee into the 2016 election bleeding from the fight.


While it’s unlikely that 2016 politics figured into Holder’s decision, this issue isn’t going away. More than half of the nation’s population lives in jurisdictions where marijuana is legal for medical use.

The GOP could avoid this showdown by working with Democrats to change the federal law before the primary season, although committing an act of bipartisanship could be seen as betrayal by the far right.

The GOP is stranded in a very dangerous minefield on reproductive rights, immigration, LGBT rights, and its marijuana policy. The older voters who tended to support the culture wars are aging out and younger voters tend to find those old wedge issues irrelevant, if not offensive.

Regardless of how this plays out with the U.S. Attorneys, the political implications of Holder’s guidance could shape the next presidential election and help unleash a period of drug policy “glasnost” around the world.

Sanho Tree directs the Drug Policy project at the Institute for Policy Studies.

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3 Responses for “High Times Ahead: The Political Side Effects of Tolerating Legal Pot”

  1. Sherry Epley says:

    The cost to tax payers of finding, prosecuting, and building prisons to house and feed recreational marijuana users is more than I imagined. This from a Texas article:

    “About $7 billion is spent annually to prosecute marijuana cases, which amounts to a cost of about $10,400 for every marijuana arrest. You must then figure in general court costs of $853 million and prison costs of $3.1 billion annually in taxpayer money that goes to prosecute marijuana cases. The gross amount of arrests made in the war on drugs means that U.S. taxpayers now spend more money on state prisons than we do on our public universities.

    However, it is estimated that if illegal drugs were taxed at rates comparable to those currently placed on alcohol and tobacco, drug legalization would yield tax revenue of $46.7 billion annually. These estimates are backed by history: according to California’s Department of Justice, the state saved nearly $1 billion during the time it decriminalized personal possession of an ounce or less of marijuana from 1976 to 1985.”

  2. Raul Troche says:

    It is about time marijuana was decriminalized. It was made illegal in1937 by a tax law and carried heavy fines which helped no one but our government as a source of revenue. Our court system and jails have been overcrowded as a result of enforcement. This enforcement has done much more harm to indiduals and their families than the herb itself ever could. After all its medicinal and economic values cannot be denied. The only one who benefited from these laws is our government. God says he made the leaves of the trees for the healing of the nations and again he says the leaves shall be for medicine. If it benefits someone medicinally Otis a part of their pursuit of happiness why should our government fine and or incarcerate citizens for it?

  3. Reaganomicon says:

    The whole cannabis legalization thing has been fascinating to watch, because it was scheduled for basically the same reasons that cocaine was. Marijuana is called marijuana because it was used recreationally by incoming immigrants that entered the US after the 1910 Mexican revolution. This was the era of prohibition, and anti-drug and anti-alcohol groups waged a campaign accusing stoned mexicans of commiting all sorts of terrible crimes, in much the same way that they implied cocaine-fueled blacks were going to rape and kill white women. This eventually led to both drugs being scheduled, with cannabis falling in the schedule I “no accepted medical use” and cocaine as schedule II “medical but highly addictive.” Cannabis ended up on the UN scheduling because of the Saudis. The Turks were recreational hash users and the Saudis really hate the Turks, so they pushed the UN to schedule cannabis to screw with the Turkish people.

    What is sad about all of this is that there is overwhelming evidence that cannabis has very real and very positive medical effects with respect to pain, net blood pressure, appetite, and blood sugar levels. Recreational abuse doesn’t drive people to be idiots in the same manner that alcohol frequently does, it doesn’t carry the massive physical addiction that alcohol does, and you would need to smoke pounds and pounds of cannabis in a few hours to reach the fatal dose level.

    As for Holder’s statement regarding cannabis prioritization, I don’t trust him. The Controlled Substances Act gives the executive branch the right to reschedule drugs without the need for congressional approval, so Obama’s frequent assertion that congress needs to change things is a load of crap. With Holder’s reprioritization, there’s literally nothing preventing the federal government from swooping in once Colorado and Washington have filled their coffers with tax money from cannabis and just taking the money as assets involved in illegal drug trade. There’s just way too much money in the war on drugs to trust them.

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