On Thursday, Attorney General and notable fun-hater Jeff Sessions announced the end of an Obama-era policy that paved the road for legal pot and instead opened the door for cannabis prosecution by US attorneys.
According to the Associated Press, US attorneys will be able to decide how to devote federal resources to marijuana enforcement and prosecution. This overturns the Cole memorandum signed by former Deputy Attorney General James Cole in 2013, which advised US attorneys to uphold states’ decisions regarding the legality of cannabis and not prioritize the use of federal funds for prosecuting cannabis in states where it had been legalized.
Thursday’s announcement, while not necessarily unexpected from an anti-pot crusader like Sessions, is a blow to the businesses and investors that have spent billions on bringing the cannabis industry from the black market into the light of day, as well as the cannabis researchers who must navigate stringent drug laws to perform their research. The biggest potential losers, however, are the citizens of the states who were anticipating the large windfall from cannabis tax revenue and those who will be incarcerated for merely possessing cannabis.
The loss of tax revenue may be significant. Take Colorado for instance, which has claimed half-a-billion dollars in tax revenue since it legalized pot in 2014. Most of this revenue is used to bolster its primary education system, which was spending almost $3,000 less per pupil than the national average. In California, which officially got legal pot on January 1, tax revenues from cannabis are expected to exceed $1 billion annually within a matter of years.
So how did we get here? How did we go from a clear path to legalization to forcing cannabusinesses to operate in a gray area where the legality of their trade is ultimately subject to the whims of the administration in charge and the US attorneys overseeing federal judicial districts?
It’s difficult to place the blame squarely on any one particular entity. The Drug Enforcement Agency, for instance, had the opportunity to reschedule cannabis in 2016, which could have drastically disincentivized the prosecution of cannabis retailers, growers and users. Instead, the DEA kept cannabis as a Schedule I substance, which makes weed a felony to possess.
But it’s our elected representatives who deserve the most scrutiny in the matter. With the exception of a handful of staunch legalization advocates in Congress, most Representatives and Senators either don’t support legalization at all, or have only expressed tepid support for progressive cannabis policies.
In March, a group of 11 Senators (10 Democrats and one Republican) wrote a letter to Sessions urging him to uphold the Cole memo. The gesture was dismissed by Sessions, who views the legalization of cannabis as a catalyst for crime, and went so far as to personally write to Congressional leaders in June asking for permission to crack down on not just recreational marijuana, but medical marijuana as well.
In July, the Senate approved an amendment to an appropriations bill that would prevent the Department of Justice from using any of its funds to prevent states from allowing medical marijuana, and a similar amendment was approved in the House of Representatives. After Trump approved the budget, this ultimately extended medical marijuana protections until December 8 of last year. Recreational marijuana, however, was not covered in the budget amendment.
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What’s happened, then, is that a “conservative” Republican party that nominally supports states’ rights and small government has become the party of federal government overreach and mass incarceration. Its policy here will cripple small business and deplete local tax bases, largely in progressive strongholds, and few Democrats have done anything about it.
It is clear that the efforts of Democratic representatives—and the handful of sympathetic Republicans—to uphold the rights of states to self-determine marijuana policy have not gone nearly far enough.
If the Democrats running for office in the 2018 midterms and 2020 general elections have any sense, they will run on a platform of full cannabis legalization. This would reflect the will of nearly two-thirds of Americans and provide a substantial boost to state tax revenue. More importantly, however, it would signal that Democrats are serious about curtailing the egregious effects of the federal war on cannabis, which has resulted in the arrest of over 8 million people in the last decade, the majority of whom were people of color.
If Democratic candidates continue to pussyfoot around this issue, the fate of millions of Americans will ultimately be subject to the whims of a few dozen US attorneys and the chief cop of the land who insists on doubling down on the failed war on drugs.