What will federal marijuana reform look like?

• Author: Kreit, Alex
• Position: Western Reserve University School of Law Interdisciplinary Conference on Marijuana, Federal Power & the States

CONTENTS INTRODUCTION I. WHY FEDERAL MARIJUANA LAW REFORM IS BOTH NECESSARY AND INEVITABLE II. PROPOSALS TO SOLVE THE CONFLICT BETWEEN STATE AND FEDERAL MARIJUANA LAWS A. Reform Through Appropriations Provisos B. An Affirmative Defense Based on Compliance with State Law C. Letting States Opt Out of Federal Marijuana Laws D. Federal Marijuana Regulation III. ADVERTISING, COMMERCIALIZATION, AND FEDERAL MARIJUANA REFORM CONCLUSION INTRODUCTION

When Californian voters passed the first modern medical marijuana ballot measure in 1996, it was hard to imagine federal law might ever change to accommodate it. At the time, then-drug czar Barry McCaffrey called the law "a cruel hoax that sounds more like something out of a Cheech and Chong show." (1) The Drug Enforcement Administration (DEA) threatened to go after the controlled substances licenses of doctors who recommended medical marijuana, (2) and the House of Representatives passed a symbolic "Not Legalizing Marijuana for Medical Use" sense of Congress resolution by a vote of 310 to 93. (3)

Even as more and more states followed California's lead and passed medical marijuana laws of their own, little changed at the federal level. By one estimate, the federal government spent $483 million dollars interfering with state medical marijuana laws between 1996 and 2012, conducting at least 528 raids and dozens of prosecutions of people operating in compliance with state medical marijuana laws. (4)

By the time Colorado and Washington took state reforms even further in 2012 with laws legalizing marijuana for recreational use, federal marijuana laws and enforcement policies stood in roughly the same place as they had back in 1996. If anything, the Obama administration's actions on medical marijuana--vigorously raiding and prosecuting state operators despite a 2008 campaign pledge (5) and a 2009 Department of Justice memo (6) that indicated he would do just the opposite--made the prospect of change at the federal level seem even bleaker. (7)

Somewhat suddenly, however, the last two years have seen the once-impossible idea of reforming federal marijuana law become seemingly inevitable. (8) In late 2013, the Department of Justice announced a new round of marijuana enforcement guidelines. (9) The text of the DOJ's 2013 guidance is not all that different from its largely ignored 2009 memorandum. This time, however, federal prosecutors and the DEA have mostly abided by the advice. As a result, stores are selling marijuana in Colorado and Washington as openly as they would any other consumer good. Perhaps even more notable, the 2015 federal budget included an appropriations rider banning the Department of Justice from spending money to block the implementation of state medical marijuana laws. (10) Taken together, these two developments suggest the executive and legislative branches are finally coming around to the conclusion that enforcing federal marijuana prohibition in states that have enacted reform is simply no longer a viable option.

But if uniformly enforced federal marijuana prohibition is no longer sustainable, what should a new policy look like? Perhaps because the prospect of a move away from federal marijuana prohibition has seemed so remote for so long, there has not been much serious dialogue about the pros and cons of the various alternatives. Marijuana legalization advocates have been focused on lobbying for any politically viable short-term workaround to the conflict between state and federal law, not crafting a policy for the long-term. Prohibitionists, meanwhile, have been sticking with a run-out-the-clock strategy, betting on the hope that the medical and recreational marijuana legalization trend will eventually reverse itself and working to keep federal marijuana laws untouched until that day comes.

So much energy has been directed at the debate about whether to change federal marijuana laws that the question of how to change them has been almost an afterthought. Barring a dramatic political reversal, however, it is no longer a matter of whether but when, and that makes the how of federal marijuana reform increasingly important. Instead of trying to find the best short-term fix to the current state-federal conflict, it is time to start thinking seriously about what federal marijuana policy should look like for the next forty or fifty years. This Article aims to help further the dialogue on this question. My goal is not to advocate for any particular solution or consider any one option in detail, but instead to highlight some of the considerations that might guide the debate and some of the tradeoffs different sorts of policies might entail. I argue that the federal marijuana reform ideas that have generated the most political interest and momentum so far (appropriations provisos and affirmative defense proposals) suffer from serious flaws that make them unlikely to be attractive long-term options. Instead, more sweeping changes to federal law are likely necessary to harmonize state and federal marijuana law. And, though perhaps counterintuitive, there are reasons legalization opponents may also come to reluctantly accept ideas like federal marijuana regulation or state waiver programs as the best option for addressing some of their biggest concerns as legalization moves forward.

This Article proceeds in three parts. Part I briefly lays out the case for why federal law must change to accommodate state marijuana reforms and why, although perhaps not politically viable today, change is nevertheless inevitable and may come much sooner than many think. Part II considers the types of federal marijuana reform proposals that have generated interest and analyzes which is most likely to effectively end the conflict between state and federal marijuana law. Part III looks at the idea of federal marijuana law from the perspective of marijuana legalization opponents and skeptics. Though people in this category might prefer nationwide marijuana prohibition, if that is not a viable option in the long-term, what federal policy would be most likely to effectively address their central concerns about legalization?

1. WHY FEDERAL MARIJUANA LAW REFORM IS BOTH NECESSARY AND INEVITABLE

   Walking around Denver, Colorado, or leafing through the Wall Street Journal, it would be easy to forget that federal law still criminalizes the distribution, (11) manufacture, (12) and even simple possession of marijuana. (13) State-legal marijuana stores openly sell millions of dollars' worth of marijuana in Colorado, (14) seemingly unconcerned by the lengthy federal sentences their operators are risking. (15) Meanwhile, angel investors pump money into marijuana ventures like Eaze, a "high-tech pot-delivery service" (16)--or, in the eyes of federal drug laws, a sophisticated conspiracy to illegally distribute a controlled substance.

   The disconnect between the letter of federal law and the emerging marijuana industry is, in large part, the result of an August 2013 Department of Justice (DOJ) memo advising federal prosecutors not to interfere with state marijuana legalization laws. (17) The memo cautions that it "is intended solely as a guide to the exercise of investigative and prosecutorial discretion" and does not give state-compliant marijuana operators any legally enforceable rights or protection. (18) But enough marijuana operators have put their confidence in the DOJ's nonbinding guidance that it has proven to be a relatively effective short-term answer to the state-federal marijuana conflict, at least so far. With marijuana businesses operating openly, it is fair to ask whether the state-federal marijuana conflict has already been solved. Does Congress really need to change federal law, or can federal prohibition and state legalization comfortably coexist through an executive nonenforcement policy?

   Though the DOJ's marijuana nonenforcement policy could continue indefinitely in theory, it is not a long-term solution for several reasons. First, prosecutorial guidance is just that--guidance. A new Attorney General could decide to change the policy. (19) If that happens, the people investing in marijuana delivery startups today could be facing federal drug charges tomorrow. Because their actions violate existing federal law, there would be no ex post facto bar to prosecuting marijuana business operators for conduct they undertook while the nonenforcement prosecutorial guidance was in effect. As a result, every Colorado marijuana business owner who employs an armed security guard could wind up serving an effective life sentence in federal prison (20) when a new President is sworn into office in January 2017, even if they closed their doors in November 2016. Indeed, even while the policy is in place, a disobedient federal prosecutor could simply ignore it. (21) Because the policy is only advisory, it does not give state-legal marijuana operators who rely on it a defense in federal court. (22)

   Second, even if the DOJ's nonenforcement policy could reliably shield marijuana businesses from federal criminal prosecution, it does not solve the conflict between federal prohibition and state legalization entirely. As Erwin Chemerinsky, Jolene Foran, Allen Hopper, and Sam Kamin explain in their recent article Cooperative Federalism and Marijuana Regulation, there are a number of "substantial obstacles to businesses and adults seeking to implement and avail themselves of new state laws authorizing marijuana distribution and use" that cannot be solved by prosecutorial discretion alone. (23) These obstacles include access to banks, which are far less likely to be persuaded by advisory guidance (24); access to attorneys, who may face ethics charges for facilitating federally illegal drug operations (25); a "crippling" federal tax penalty for marijuana businesses (26); and risks to users in the form of potential adverse employment, probation and parole, and family law consequences. (27) Federal...