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Senators Hold Hearing on State Marijuana Legalization

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A U.S. Senate panel held a hearing Tuesday to investigate the Obama administration’s response to marijuana legalization in a growing number of states.

“In 2013, the Department of Justice decided to all but abandon the enforcement of federal law relating to the possession, cultivation, and distribution of marijuana in states that were in the process of becoming the only jurisdictions in the world to legalize and regulate all these activities for recreational use,” Sen. Charles Grassley (R-IA), chairman of the Senate Caucus on International Narcotics Control, said in his opening remarks.

That was the consistent theme throughout most of the hearing. A mostly stacked panel of anti-legalization witnesses voiced a litany of complaints with what they see as President Obama’s turning a blind eye to violations of federal drug laws.

First up to testify was Benjamin Wagner, a U.S. attorney from California who helped to lead a crackdown against state-legal medical marijuana dispensaries during the first term of the Obama administration.

But while Wagner has been seen by legalization advocates as a prohibitionist crusader bent on shutting down locally-approved medical cannabis businesses, at the hearing he largely defended the Justice Department’s current policy of generally respecting state marijuana policies.

“The federal government and the states traditionally have worked as partners in the field of drug enforcement,” he said. “Changes in state laws relating to marijuana enforcement have affected this environment in some states, but the Department continues to work with its state and local partners to address the major threats posed by drug trafficking, including marijuana cultivation and distribution, and to ensure that our efforts are mutually supportive.”

In one bit of news to come from the testimony, Wagner announced that the Department of Justice would create a publicly available “repository providing data concerning the effects of state marijuana legalization.”

The move is in response to a Government Accountability Office (GAO) report released in February which criticized the administration for not not having a clear plan for deciding when to enforce federal drug laws against people who are operating in accordance with state marijuana legalization programs. The report was requested by Grassley and narcotics caucus co-chair Sen. Dianne Feinstein (D-CA).

In August 2013 the Department of Justice issued a memo directing U.S. attorneys to generally respect state marijuana laws and not target people following those policies unless one of eight identified federal enforcement priorities were triggered. The directive describes how federal prosecutors should avoid interfering with state marijuana programs unless there is evidence that the drug is ending up in the hands of children, being distributed across state lines, contributing to increased impaired driving or violence, among other priorities.

Legalization opponents, including Grassley, have argued that the policy amounts to a blanket refusal to enforce federal drug laws via presidential fiat. The Justice Department has struggled to articulate how it decides when to intervene and when to stay out of the way of state marijuana policy.

Jennifer Grover, of the GAO, testified at the hearing that the government is “committed to creating a monitoring plan” but that “they’re just starting and I expect it will be quite awhile” before it’s ready to be released. “This is a big job for the department,” she said.

Wagner also drew attention by insinuating that fully legalized and regulated marijuana sales are preferable to mere decriminalization of possession.

Discussing the possibility that lawsuits by the federal government or others could result in the preemption of Colorado’s regulatory system for legal marijuana sales but would not be able to force the state to resume criminalizing, arresting and prosecuting people for possession or home cultivation, he said, “You may well have a situation which is worse than the status quo.”

James Cole, then the deputy attorney general, made similar remarks at a Senate Judiciary Committee hearing in 2013.

Also testifying at the Tuesday hearing was Doug Peterson, the Nebraska attorney general who oversaw a lawsuit his state and Oklahoma filed together against neighboring Colorado over its legal marijuana law. The U.S. Supreme Court decided last month not to hear the case.

“The most urgent message I have regarding the state-sponsored marijuana industry does not concern bad policy choices. Rather, it is one of lawlessness,” Peterson said. “It is about whether America’s drug laws are to have any meaning and effect, or if they can simply be undermined by a few states’ rogue defiance of a national legal framework. It is also about the disturbing precedent set by an administration unilaterally deciding to abandon the enforcement of key parts of those drug laws, without the approval of the Congress which enacted them.”

Calling Colorado’s legalization policy “a harmful national nuisance,” he said that the law is much more than “an experiment in democracy confined within one state’s borders.” As in the Supreme Court lawsuit, he compared Colorado cannabis coming over his state’s borders to environmental pollution.

Peterson expressed concern that it the federal government doesn’t begin pushing back against the growing marijuana industry soon, it may be too late to reverse the legalization movement’s gains. “If they don’t do something very quickly, I don’t think we’ll ever be able to get this back in the bag,” he said.

The final witness was Kathryn Wells, a medical doctor from Denver and a board member of leading anti-legalization organization Smart Approaches to Marijuana.

“Child health and welfare in Colorado has been endangered” by legalization, she testified, singling out cannabis edibles and the possible impacts of marijuana use during pregnancy and breastfeeding.

“I urge the Federal government and other states contemplating similar legal changes involving the legalization of recreational marijuana to take the time to consider the impact of such policy on the health and wellbeing of our youngest citizens,” Wells testified.

Grassley, the panel’s chairman, said that stopping the spread of legalized marijuana is particularly important in light of the opioid overdose epidemic sweeping the country.

“Just last year, the Centers for Disease Control found that people who are addicted to marijuana are three times more likely to be addicted to heroin,” he said. “So if the Obama Administration is serious about addressing this epidemic, it should stop burying its head in the sand about what’s happening to its enforcement priorities on recreational marijuana. And it should use what it learns to develop a coherent enforcement approach that protects public health and safety, and is consistent with its obligation to take care that our laws are faithfully executed.”

Marijuana is now legal for adults over 21 years of age in four states and Washington, D.C., while medical cannabis is legal in 23 states and D.C. It is expected that the number of states with full legalization could double by the end of this year and at least three more states could enact comprehensive cannabis programs in the coming months.

A video of Tuesday’s caucus hearing is available here:

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