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Monday, September 23, 2013

State Marijuana Legalization Initiatives: Implications for Federal Law Enforcement

Lisa N. Sacco
Analyst in Illicit Drugs and Crime Policy

Kristin Finklea
Acting Section Research Manager and Specialist in Domestic Security

Marijuana is the most commonly used illicit drug across the world, including in the United States. In 2012, an estimated 18.9 million individuals in the United States aged 12 or older (7.3% of this population) had used marijuana in the past month. The rate of reported marijuana use in 2012 was significantly higher than those rates reported prior to 2007. Mirroring this increase in use, marijuana availability in the United States has also increased. This growth has been linked to factors such as rising marijuana production in Mexico, decreasing marijuana eradication in Mexico, and increasing marijuana cultivation in the United States led by criminal networks including Mexican drug trafficking organizations.

Along with the uptick in the availability and use of marijuana in the United States, there has been a general shift in public attitudes toward the substance. In 1969, 12% of the surveyed population supported legalizing marijuana; today, more than half (52%) of surveyed adults have expressed opinions that marijuana should be legalized. And, 60% indicate that the federal government should not enforce its marijuana laws in states that allow the use of marijuana.

The federal government—through the Controlled Substances Act (CSA; P.L. 91-513; 21 U.S.C. §801 et. seq.)—prohibits the manufacture, distribution, dispensation, and possession of marijuana. Over the last few decades, some states have deviated from an across-the-board prohibition of marijuana. Evolving state-level positions on marijuana include decriminalization initiatives, legal exceptions for medical use, and legalization of certain quantities for recreational use. Notably, in the November 2012 elections, voters in Washington State and Colorado voted to legalize, regulate, and tax the recreational use of small amounts of marijuana. These latest moves have spurred a number of questions regarding their potential implications for related federal law enforcement activities and for the nation’s drug policies on the whole. Among these questions is whether or to what extent state initiatives to decriminalize, or even legalize, the use of marijuana conflict with federal law.

In general, federal law enforcement has tailored its efforts to target criminal networks rather than individual criminals; its stance regarding marijuana offenders appears consistent with this position. While drug-related investigations and prosecutions remain a priority for federal law enforcement, the Obama Administration has suggested that efforts will be harnessed against large-scale trafficking organizations rather than on recreational users of marijuana. In an August 2013 memorandum, Deputy Attorney General Cole stated that while marijuana remains an illegal substance under the Controlled Substances Act, the Department of Justice would focus its resources on the “most significant threats in the most effective, consistent, and rational way.” The memo outlined eight enforcement priorities including preventing the distribution of marijuana to minors and preventing the diversion of marijuana from states where it is legal under state law into other states. Some may question whether state-level laws and regulations regarding marijuana prohibition—in particular those that clash with federal laws—may adversely impact collaborative law enforcement efforts and relationships. Currently, there is no evidence to suggest that the operation of these collaborative bodies will be impacted by current state-level marijuana decriminalization or legalization initiatives. Data from the U.S. Sentencing Commission seem to indicate a federal law enforcement focus on trafficking as opposed to possession offenses. Of the federal drug cases with marijuana listed as the primary drug type (28% of total drug cases sentenced), over 98% involved a sentence for drug trafficking in 2012.

A number of criminal networks rely heavily on profits generated from the sale of illegal drugs— including marijuana—in the United States. As such, scholars and policymakers have questioned whether or how any changes in state or federal marijuana policy in the United States might impact organized crime proceeds and levels of drug trafficking-related violence, particularly in Mexico. In short, there are no definitive answers to these questions; without clear understanding of (1) actual proceeds generated by the sale of illicit drugs in the United States, (2) the proportion of total proceeds attributable to the sale of marijuana, and (3) the proportion of marijuana sales controlled by criminal organizations and affiliated gangs, any estimates of how marijuana legalization might impact the drug trafficking organizations are purely speculative.

Given the differences between federal marijuana policies and those of states including Colorado and Washington, Congress may choose to address state legalization initiatives in a number of ways, or choose to take no action. Among the host of options, policymakers may choose to amend or affirm federal marijuana policy, exercise oversight over federal law enforcement activities, or incentivize state policies through the provision or denial of certain funds.

Date of Report: September 9, 2013
Number of Pages: 13
Order Number: R43157
Price: $29.95

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