20 March 2016
What GAO Found
Officials from the Department of Justice’s (DOJ) Office of the Deputy Attorney General (ODAG) reported monitoring the effects of state marijuana legalization relative to DOJ policy, generally in two ways. First, officials reported that U.S. Attorneys prosecute cases that threaten federal marijuana enforcement priorities (see fig. below) and consult with state officials about areas of federal concern, such as the potential impact on enforcement priorities of edible marijuana products. Second, officials reported they collaborate with DOJ components, including the Drug Enforcement Administration (DEA) and other federal agencies, including the Office of National Drug Control Policy, and assess various marijuana enforcement-related data these agencies provide. However, DOJ has not documented its monitoring process, as called for in Standards for Internal Control in the Federal Government . Documenting a plan specifying its monitoring process would provide DOJ with greater assurance that its monitoring activities relative to DOJ marijuana enforcement guidance are occurring as intended. Further, making this plan available to appropriate DOJ components can provide ODAG with an opportunity to gain institutional knowledge with respect to its monitoring plan, including the utility of the data ODAG is using. This can better position ODAG to identify state systems that are not effectively protecting federal enforcement priorities and, if necessary, take steps to challenge these systems in accordance with DOJ marijuana enforcement guidance.
The Hill Analyses the report
March 18, 2016, 01:30 pm
GAO report shows Congress must act on marijuana
Last month, the Government Accountability Office (GAO) publically released a report entitled “State Marijuana Legalization: DOJ Should Document its Approach to Monitoring the Effects of Legalization.” It could have as easily been called “How our Current Marijuana Policy Isn’t Cutting It.”
Reading the synopsis, it quickly becomes clear that there is more than one way things could go south on marijuana policy. Congress could continue to do nothing as states vote to legalize at the ballot box for the third consecutive election. The flaws in the current system highlighted by this GAO report would only be exacerbated—like the fact that the Department of Justice (DOJ) hasn’t explained how it is tracking the effects of marijuana legalization or provided any specificity about how it will use data to determine if states are failing to meet the Obama administration’s enforcement priorities. Or Congress could pass a bill like Sen. Bernie Sanders’ (I-Vt.) Ending Federal Prohibition of Marijuana Act, ceding all control of marijuana policy to the states. That path would severely limit the federal government’s ability to set guiderails for responsible marijuana policy and turn a blind eye to the GAO’s recommendations to ensure that federal priorities (like drug-free kids and safe roads) are adequately protected.
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This report should be a wake-up call for Congress. What’s happening now—a conflict between laws in 23 states legalizing marijuana for recreational or medical purposes and the federal laws prohibiting its use for any reason—is untenable. DOJ is struggling to establish effective oversight, and states lack clear guidance (not to mention assistance with writing robust and effective regulatory systems).
There is a clear and simple solution to both the current mess created by our patchwork of laws and to the problems outlined in the GAO report: Congress should pass a safe haven bill allowing the Attorney General to grant time-limited waivers from the federal marijuana prohibition to states that have legalized marijuana, but only if they have smart and responsible regulatory systems in place to protect federal interests. By doing so, Congress could require states to submit data on the effects of their laws, specifically outline how DOJ should review that data to determine whether federal interests are being protected, and incentivize states that legalize marijuana in the future to do so in the most responsible way possible.
A bill like this would fix the problems states are experiencing on the ground, so that those who participate in marijuana markets that are legal under state law wouldn’t have to live in fear of prosecution. The marijuana industry wouldn’t be locked out of the federally-regulated banking system and forced to operate on an all cash basis. States would be able to more effectively intervene in and regulate their marijuana markets, because they wouldn’t be risking preemption lawsuits for getting too involved in the system. And the federal government wouldn’t have to treat all state legalization schemes the same. This ability to differentiate between state marijuana laws would enable the federal government to push back, for example, on the 17 states (out of the 23 that have legalized medical or recreational marijuana) that don’t have open container laws prohibiting all consumption of marijuana in moving cars, the 21 states that don’t prohibit firearms in marijuana dispensaries, and the 7 states without any regulations limiting the time, place, or manner in which marijuana businesses can advertise.