The U.S. Department of Justice announced August 29, 2013 that it will not challenge state laws recently enacted in Colorado and Washington State legalizing marijuana, as long as those laws do not conflict with certain federal enforcement priorities. A memorandum to all United States Attorneys across the country from Deputy Attorney General James M. Cole stated that although the Department is committed to enforcing the federal Controlled Substances Act (which categorizes marijuana as a Schedule I illegal drug having a high potential for abuse and no currently accepted medical use in treatment in the U.S.), the Department also is committed to “using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent and rational way.” Specifically, the Department’s enforcement priorities are as follows:

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

The Department further stated that it expects Colorado and Washington State “to establish strict regulatory schemes that protect the eight federal interests” identified above. “These schemes must be tough in practice, not just on paper, and include strong, stated-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time. But if any of the stated harms do materialize—either despite a strict regulatory scheme or because of the lack of one—federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.”

For now, the federal government defers its position on pre-emption (i.e., federal law stating that marijuana is illegal pre-empts state laws providing that it is legal). It remains to be seen whether Colorado’s and Washington’s regulatory schemes will satisfy federal prosecutors.