“Will the Feds Crack Down on Pot or Look the Other Way?”

The question in the title of this post is the headline of this new Businessweek article.  Here are excerpts:

A week after voters in Washington State and Colorado approved Election Day ballot measures legalizing recreational marijuana, Washington Governor Chris Gregoire got on a plane to D.C.  A Democrat, Gregoire wanted to know if the new law would put her state at odds with President Obama, whose administration has raided hundreds of marijuana dispensaries in California, where medical pot has been legal under state law since 1996.

Gregoire met with U.S. Deputy Attorney General James Cole, who oversees enforcement of the Controlled Substances Act, the 42-year-old federal law that designates cannabis as a Schedule I controlled substance, the same category as heroin and LSD.  If her state’s liquor control board began issuing permits to aspiring pot entrepreneurs, Gregoire wanted to know, would federal agents soon head her way?  Cole didn’t have the answers she wanted. “They are ‘looking at the issue.’ That was about the only reaction we got,” says Gregoire’s spokesman, Cory Curtis.  Cole, who declined to be interviewed, wasn’t merely stonewalling.  He likely couldn’t answer the question because the Department of Justice has yet to spell out a consistent policy for dealing with the growing number of states legalizing pot to some degree, in violation of federal law….

For the most part, the Justice Department has avoided prosecuting pot-smoking cancer patients and has only sporadically raided dispensaries suspected of breaking local laws by operating too close to a school, supplying marijuana to nonpatients, or moving suspiciously large amounts of the drug.  But the Washington and Colorado laws, which call on those states to regulate recreational marijuana like liquor — issuing business licenses to pot stores and collecting tax revenue on sales — renews pressure on the administration to let would-be sellers and smokers know whether they’re putting themselves at risk of prosecution.  “That’s a harder question,” says Erwin Chemerinsky, a professor of law at the University of California at Irvine.  “It’s the state actually facilitating the sale of marijuana, as opposed to just not prohibiting” its use.

In the coming months, the Justice Department must decide whether to sue Colorado and Washington to keep them from issuing commercial pot licenses, a move that would be unprecedented in marijuana cases.  If it does take the states to court, says Allen St. Pierre, executive director of the marijuana advocacy group Norml, it “will be a rocket ride all the way to the Supreme Court.”

Short of that, Justice could instruct prosecutors to go after the most flagrant violators of federal law.  First prosecutors would have to figure out how to define flagrant, since all sale and possession of marijuana is technically illegal.  If it sets out guidelines saying what is and isn’t allowed, the department would be condoning illicit activity.  “I don’t think they know what to do,” says Ethan Nadelmann, executive director of the Drug Policy Alliance, a pro-legalization group. “They’re juggling a lot of variables.”

In related coverage, ABC News has this lengthy new piece headlined “Legal Pot at ‘Tipping Point,’ Experts Say.”