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Totally Disinterested Drug Warriors Demand That Holder Stop Marijuana Legalization Before It’s Too Late
March 6, 2013, 7:32 am
Filed under: Uncategorized

Totally Disinterested Drug Warriors Demand That Holder Stop Marijuana Legalization Before It’s Too Late:

In an open letter
released today, eight former heads of the Drug Enforcement
Administration (DEA), four former drug czars, and assorted
anti-drug groups urge the Senate Judiciary Committee, which is
scheduled to hear testimony from Attorney General Eric Holder
tomorrow, to grill him about why he is not stopping Colorado and
Washington from legalizing marijuana. Here are the questions they
want Holder to answer:

1. Why isn’t the Department of Justice enforcing the Controlled
Substances Act in Colorado and Washington? Do you still agree that
under the Supremacy Clause, Article VI, clause 2 of the U.S.
Constitution, and long- and well-established U.S. Supreme Court
precedent, federal law preempts state law when there is a conflict
between the two?…
2. What is being done to honor our international drug control
treaty obligations, which require the United States as a nation to
enforce the law prohibiting the distribution, sale and
cultivation of marijuana?

The Justice Department, of course, has not stopped “enforcing
the Controlled Substances Act [CSA] in Colorado and Washington.”
Not even the part dealing with marijuana, as a look at recent press
releases from the U.S. attorney’s offices in
Colorado
, the
Eastern District of Washington
, and the
Western District of Washington
will confirm. That does not mean
the feds are going after everyone who violates the federal ban on
marijuana, but they have never done that. Not even close. State and
local law enforcement agencies are responsible for 99
percent
of pot busts, which in turn represent just a tiny
fraction of marijuana offenders. So what the former DEA
administrators really want to know is why the Justice Department is
not enforcing the CSA more. For example, now that it is
legal for adults 21 or older to possess up to an ounce of marijuana
in Colorado and Washington, and to grow up to six plants at home in
Colorado, the Justice Department could try to pick up the slack by
busting large numbers of pot smokers and small-time growers.
Whether that would be a good use of Justice Department resources is
open to debate, but there is no question that Holder and his
underlings have the authority to make that call (leaving aside the
dubiousness
of the Commerce Clause interpretation that allows federal action
against intrastate drug activity).
Similarly, the Single
Convention on Narcotic Drugs
 call upon signatories to make
the production, possession, and distribution of marijuana for
nonmedical use “punishable offenses.” It does not say signatories
must actually punish every such violation, or most of them, or any
particular percentage. Nor does it say that the U.S. government
must compel every state to punish people for marijuana offenses. To
the contrary, the treaty says its obligations are subject to
“constitutional limitations,” which in the United States means
(among other things) that the federal government may not compel
states to punish every act that Congress deems a crime. Even if the
treaty did not include this provision,
treaties cannot give Congress powers the Constitution does not
grant it
. The Single Convention also says the parties “shall
adopt such measures as may be necessary to prevent the misuse of,
and illicit traffic in, the leaves of the cannabis plant.” Again,
that provision cannot override the U.S. Constitution, and there is
considerable leeway in determining exactly what measures are
“necessary.”
In a
report
issued today, the International Narcotics Control Board
(INCB) “notes with serious concern the ongoing move towards
the legalization of cannabis for non-medical purposes in some
parts of the United States of America.” It says the legalization of
marijuana in Colorado and Washington “constitutes a
significant challenge to the objective of the international
drug control treaties to which the United States is a party.”
It reiterates its
call
for the U.S. government to “take necessary measures to
ensure full compliance with the international drug control
treaties in its entire territory.” But the INCB does not claim
those “necessary measures” entail forcing Colorado and Washington
to recriminalize marijuana. Presumably the INCB, like the former
DEA administrators, would like to see more federal action against
marijuana offenders, but the anti-drug treaties do not require
that. “Full compliance” with the treaties does not mean eliminating
all marijuana use; if it did, every signatory would always be out
of compliance. Nor does the treaty preclude the Justice Department
from deciding, after state-licensed marijuana stores open in
Colorado and Washington, that raiding them and prosecuting their
operators is a poor use of its resources, especially in light of
our federalist tradition and the choices made by voters in those
states.
As reflected in their reference to federal pre-emption, the
former DEA heads still seem to be
hoping
for a Justice Department lawsuit aimed at blocking the
Colorado and Washington laws from taking effect:

[Peter] Bensinger…said not acting forthrightly to sue the
states might create “a domino effect” in which other states follow
suit.
“My fear is that the Justice Department will do what they are
doing now: Do nothing and say nothing,” said Bensinger. “If they
don’t act now, these laws will be fully implemented in a matter of
months.”

Such litigation is unlikely to be successful, for reasons I
explain
here
and
here
. As for a “domino effect,” Bensinger’s fear is my
hope
.
“The former DEA chiefs’ statement can best be seen as a
self-interested plea to validate the costly and failed policies
they championed but that Americans are now rejecting at the ballot
box,” Drug Policy Executive Director Ethan Nadelmann
suggests
. “They obviously find it hard to admit that—at least
with respect to marijuana—their legacy will be much the same as a
previous generation of agents who once worked for the federal
Bureau of Prohibition enforcing the nation’s alcohol prohibition
laws.”
As my colleague Mike Riggs points
out
, more than pride is at stake here. Two of the letter’s
signatories, Bensinger and former National Institute on Drug Abuse
Director Robert DuPont, are partners in Bensinger, DuPont &
Associates
, “a leader in employee assistance programs” and
“drug testing management.” The letter went out on the
stationery of Save
Our Society From Drugs
, a group founded by Mel and Betty
Sembler, who used to run the abusive drug treatment outfit known as

Straight Incorporated
. Another Sembler organization, the
Drug-Free America Foundation,
has a
contract
with the federal government to help businesses develop
drug testing programs. The letter’s signatories also include the

Colorado Drug Investigators Association
, the American Society of Addiction Medicine,
the Institute for a
Drug-Free Workplace
 (which is backed by companies that
sell
drug testing services
), and Educating Voices Inc., a
provider of anti-drug “educational materials” and “technical
assistance.” They declare that “sound drug policy must be rooted in
evidence-based science, not driven by special interest groups
who are looking to profit at the expense of our nation’s public
health and safety.” 


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