"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

An opening door

idaho RANDY

Since Washington and Colorado voters last year chose to create a legal marketplace for marijuana, and other nearby states like Idaho watched closely – or, like Oregon, positioned themselves to follow suit – the big question has been: What will the federal government do?

Marijuana is still banned under federal law, and nothing in the law stops federal officials and agents from swooping into Washington and Colorado (and any followup states) allowing for legal consumption, and imprisoning, at least in theory, a whole lot of people for doing something their states have okayed.

There’s also this, however: Law enforcement officials, and prosecutors, always have made choices about which laws to enforce, and how. There are far too many laws on the books, too many infractions, misdemeanors, and even felonies to even consider trying to enforce them all with equal force. (I once asked a veteran Idaho legislative staffer how many felony offenses are on the books in Idaho, and he had no idea.) Talk privately to a cop or a prosecutor, and they’ll probably acknowledge a kind of triage: usually, they enforce strenuously laws aimed at protecting people from some kind of specific harm. Murder and other violent crime, for example, are very high priority, which seems to make sense.

When Attorney General Eric Holder on Thursday issued his department’s policy on marijuana in the age of state legalization, he seemed to bear that concept in mind. As an operating principle, he said, the department would let Washington and Colorado (and other states) do their thing on “marijuana-related conduct” – but he also provided a collection of eight red flags that might draw in federal responses.

Those “enforcement priorities”, listed in a “memorandum for all United States attorneys”, include keeping pot from being distributed to minors; keeping money from marijuana sales out of the hands of criminal elements; keeping pot from seeping out of smoking states to non-smoking states; keeping legal market activity from being used as a cover for illegal activity; preventing violence or use of firearms in cultivation and distribution; preventing drugged driving; avoiding grows on public lands; and barring marijuana use on federal lands.

In deciding whether the feds should jump in, the memo said, “The primary question in all cases – and in all jurisdictions – should be whether the conduct at issue implicates one or more of the enforcement priorities listed above.”

The point might be made, though it wasn’t explicitly by the department, that all these things already have been happening under prohibition, and that a legal market regime might be best judged not by absolute compliance but by improvement.

Still, while the new federal rule is a long way from an open free-for-all – a totally free marketplace? – it has set down for the first time a set of rules under which states could legalize without risk of federal pre-emption. That may be important.

It’s likely, for example, to increase the odds (already favorable) that Oregon will vote for legalization next year, since the terms of federal cooperation now are a lot clearer.

And for Idaho, the question will arise: How can Washington (and maybe Oregon, and conceivably Nevada too) draw the line at their border so that legal pot doesn’t cross to the Gem State? Does the border at Idaho, totally porous without any slowdowns to the west now, start to sprout checkpoints and enhanced law enforcement?

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