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Q:  I heard that the Federal Government will not be imposing mandatory minimums and is easing up on states that pass decriminalization legislation… is that true?

A:  Well, sort of. At least things are moving in the right direction. Let’s start with that. Let’s start with the good news portion of what you have heard.

Eric Holder, the Attorney General, and head of the United States Department of Justice, has made two recent announcements about new federal guidelines for marijuana (and other controlled substance) prosecutions.

Under recent guidelines, the Federal Government is not going to interfere with States who have legalized marijuana, despite there still being an existing conflict with Federal laws. (Actually, possession of even a small amount of marijuana is a federal misdemeanor, although, I don’t know of any prosecutions under that statute. However, the conflict remains.)

Eric Holder announced in August that although the Department of Justice could file suit in Federal Court to attempt to nullify or void the State laws as in conflict with Federal laws, that he would forgo that option.  If…

Ah, I said…“If”. What’s the “if”?  Well, I said we would start with the good news; now let’s tackle the not-so-good news…

In the same memorandum to US Attorneys all over the country that announced this “hands off” policy, the Department spelled out eight areas of concern that would trump the general new rule of federal non-interference.  Eight enforcement priorities that “are particularly important to the federal government”.  These priorities are:

(1) Preventing the distribution of marijuana to minors; (2) preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; (3) preventing the diversion of marijuana from states where it is legal under state law in some form to other states; (4) preventing state authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; (5) preventing violence and the use of firearms in the cultivation and distribution of marijuana; (6) preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; (7) preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and (8) preventing marijuana possession or use on federal property.

Wow. That’s a lot of priorities. And the reason that’s in the not-so-good category of the news is that a list that huge – and vague – leaves way too much room for “prosecutorial discretion”. That term is often a euphemism for a prosecutor deciding not to charge someone with a crime, for some non-purely legal reason.

But in this case, one legitimate fear of the new policy is that individual US Attorneys – and there are 93 different jurisdictions – will all come up with their own interpretations of those priorities.

For example, it is almost a 100% certainty that some marijuana from an it’s-legal state will inevitably make its way next door to an it’s-not-legal state. And does anyone think that no one under 21 (or does the memo mean under 18 when they say minors?  Who knows…) will be able to get their hands on some marijuana? Of course not.

A legalized and taxed and regulated market could easily reduce the amount of marijuana available to minors – but it won’t eliminate it. That’s impossible. So do those two facts alone – that some marijuana will be headed out of state, and that some of it will end up possessed by minors – give the Department of Justice the ammunition they need to go after States willy nilly? No state will be able to completely prevent everything on the list.

I hope the answer is that the Feds will indeed back off and allow states room to grow their new policies. And growth will include growing pains. But let’s not chuck the baby out with the bathwater.  At least there is an official acknowledgement that Federal enforcement of marijuana laws needs to be de-prioritized.

Q:  You didn’t answer the part of my question about mandatory minimums. Wasn’t there something new (and good) on that as well?

A:  Thanks for reminding me. Yes! There is (we hope) good news on that front as well…

The Department of Justice announced that in (many?/most?) cases they will be using a unique legal mechanism to get around laws that would otherwise force Federal judges to impose mandatory minimum sentences in (many?/most?) drug cases. The exceptions to the new rule, as discussed above, are vague enough that no one knows whether this will apply to many or most or only a few cases.

Mandatory minimums are triggered when a defendant is convicted of possessing a certain quantity of a certain drug. If you are below that quantity, then the mandatory minimums don’t apply.

So, going forward, Eric Holder has authorized his US Attorneys to not list the amount of drugs possessed in indictments. So where an indictment in the past might have accused the defendant of “conspiring to possess [X amount] of [marijuana/cocaine/whatever]” it would now simply read “John Smith conspired to possess [marijuana/cocaine/whatever]” with no mention of the amount. If a defendant entered a plea, the judge would not be forced to use mandatory minimum sentencing guidelines.

We shall have to wait and see whether the plethora of exceptions swallows the new rule. Then again, on both of these fronts, any move in the right direction is good news.  Isn’t it? ~