State Marijuana Legalization Initiatives: Implications for Federal Law Enforcement
Released: 2014-12-04T00:00:00

Introduction

Marijuana is the most commonly used illicit drug in the United States. In 2013, an estimated 19.8 million individuals in the United States aged 12 or older (7.5% of this population) were current (past month) users of marijuana. While reported marijuana use is similar to that in 2012, it has generally increased since 2007 when 5.8% of individuals aged 12 or older were current users of marijuana. The past decade has seen a decline in youth perceptions of risk tied to smoking marijuana; however, the rate of past-month marijuana use among youth declined between 2011 and 2013 (7.1%). Youth also perceive that obtaining marijuana—if they desire it—is relatively easy. Indeed, marijuana availability in the United States has increased, according to the Drug Enforcement Administration (DEA). This increase has been linked to factors such as rising marijuana production in Mexico and increasing marijuana cultivation in the United States led by criminal networks including Mexican drug trafficking organizations.

The uptick in availability and use of marijuana in the United States is coupled with 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 feel that marijuana should be legalized. In addition, 60% indicate that the federal government should not enforce federal laws prohibiting marijuana use in those states that allow for its use.

Marijuana is currently listed as a Schedule I controlled substance under the Controlled Substances Act (CSA). This indicates that the federal government has determined that

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

U.S. federal drug control policies—and specifically those positions relating to marijuana—continue to generate debates among policy makers, law enforcement officials, scholars, and the public. Even prior to the federal government's move in 1970 to criminalize the manufacture, distribution, dispensation, and possession of marijuana, there were significant discussions over marijuana's place in American society.

While the federal government maintains marijuana's current place as a Schedule I controlled substance, states have established a range of views and policies regarding its medical and recreational use. As of November 2014, over half of all states and the District of Columbia allowed for the medical use of marijuana in some capacity. In the November 2012 elections, voters in Washington State and Colorado voted to legalize, regulate, and tax small amounts of marijuana for recreational use . In the November 2014 elections, voters in the District of Columbia, Oregon, and Alaska also passed recreational legalization initiatives. These 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.

This report provides a background on federal marijuana policy as well as an overview of state trends with respect to marijuana decriminalization and legalization—for both medical and recreational uses. It then analyzes relevant issues for U.S. federal law enforcement as well as for the criminal organizations involved in producing, distributing, and profiting from the black market sale of marijuana. This report also outlines a number of related policy questions that Congress may confront. Of note, it does not discuss the legal issues associated with state-level initiatives to legalize marijuana for recreational use.

Background on Federal Marijuana Policy

Until 1937, the growth and use of marijuana was legal under federal law. The federal government unofficially banned marijuana under the Marihuana Tax Act of 1937 (MTA; P.L. 75-238). The MTA imposed a strict regulation requiring a high-cost transfer tax stamp for every sale of marijuana, and these stamps were rarely issued by the federal government. Shortly after passage of the MTA, all states made the possession of marijuana illegal.

The Controlled Substances Act (CSA), enacted as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (P.L. 91-513), placed the control of marijuana and other plant, drug, and chemical substances under federal jurisdiction regardless of state regulations and laws. In designating marijuana as a Schedule I controlled substance, this legislation officially prohibited the manufacture, distribution, dispensation, and possession of marijuana.

As part of the CSA, the National Commission on Marihuana and Drug Abuse, also known as the Shafer Commission, was established to study marijuana in the United States. Specifically, this commission was charged with examining issues such as

(A) the extent of use of marihuana in the United States to include its various sources of users, number of arrests, number of convictions, amount of marihuana seized, type of user, nature of use;

(B) an evaluation of the efficacy of existing marihuana laws;

(C) a study of the pharmacology of marihuana and its immediate and long-term effects, both physiological and psychological;

(D) the relationship of marihuana use to aggressive behavior and crime;

(E) the relationship between marihuana and the use of other drugs; and

(F) the international control of marihuana.

The Shafer Commission, in concluding its review, produced two reports: (1) Marihuana: A Signal of Misunderstanding , and (2) Drug Use in America: Problem in Perspective .

In its first report, the Shafer Commission discussed the perception of marijuana as a major social problem and how it came to be viewed as such. It made a number of recommendations, including the development of a "social control policy seeking to discourage marihuana use, while concentrating primarily on the prevention of heavy and very heavy use." In this first report, the Shafer Commission also called the application of the criminal law in cases of personal use of marijuana "constitutionally suspect" and declared that "total prohibition is functionally inappropriate." Of note, federal criminalization and prohibition of marijuana was never altered, either administratively or legislatively, to comply with the recommendations of the Shafer Commission.

In its second report, the Shafer Commission reviewed the use of all drugs in the United States, not solely marijuana. It examined the origins of the drug problem in the United States, including the social costs of drug use, and once again made specific recommendations regarding social policy. Among other conclusions regarding marijuana, the Shafer Commission indicated that aggressive behavior generally cannot be attributed to marijuana use. The Shafer Commission also reaffirmed its previous findings and recommendations regarding marijuana and added the following statement:

The risk potential of marihuana is quite low compared to the potent psychoactive substances, and even its widespread consumption does not involve social cost now associated with most of the stimulants and depressants (Jones, 1973; Tinklenberg, 1971). Nonetheless, the Commission remains persuaded that availability of this drug should not be institutionalized at this time.

At the conclusion of the second report, the Shafer Commission recommended that Congress launch a subsequent commission to reexamine the broad issues surrounding drug use and societal response. While a number of congressionally directed commissions regarding drugs have since been established, no such commission has been directed to review the comprehensive issues of drug use, abuse, and response in the United States. Going forward, policy makers may debate the utility of a complete re-examination of federal drug policy or, more narrowly, federal marijuana policy.

Trends in States

Over the past 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.

Decriminalization

Marijuana decriminalization differs markedly from legalization . A state decriminalizes conduct by removing the accompanying criminal penalties; however, civil penalties remain. If, for instance, a state decriminalizes the possession of marijuana in small amounts, possession of marijuana still violates state law; however, possession of marijuana within the specified small amount is considered a civil offense and subject to a civil penalty, not criminal prosecution. By decriminalizing possession of marijuana in small amounts, states are not legalizing its possession. In addition, as these initiatives generally relate to the possession (rather than the manufacture or distribution) of small amounts of marijuana, decriminalization initiatives do not conflict with federal law enforcement's priority of targeting high-level drug offenders, or so-called "big fish."

Decriminalization initiatives by the states do not appear at odds with the CSA because both maintain that possessing marijuana is in violation of the law. For example, individuals in possession of small amounts of marijuana in Massachusetts—a state that has decriminalized possession in small amounts—are in violation of both the CSA and Massachusetts state law. The difference lies in the associated penalties for these federal and state violations. Under the CSA, a person convicted of simple possession (1 st offense) of marijuana may be punished with up to one year imprisonment and/or fined not less than $1,000. Under Massachusetts state law, a person in possession of an ounce or less of marijuana is subject to a civil penalty of $100.

In recent years, several states have decriminalized the possession of small amounts of marijuana; however, some of these states, such as New York, continue to treat possession of small amounts of marijuana as a criminal offense under specific circumstances. In New York, the possession of small amounts of marijuana is still considered a crime when it is "open to public view." In 2010, nearly 55,000 individuals in New York State were arrested for criminal possession of marijuana in the fifth degree, a misdemeanor in New York State. In November 2014, New York City (NYC) Mayor de Blasio and NYC Police Commissioner Bratton announced a change in marijuana enforcement policy; individuals found to be in possession of marijuana (25 grams or less) may be eligible to receive a summons instead of being arrested.

Medical Marijuana Exceptions

In 1996, California became the first state to amend its drug laws to allow for the medicinal use of marijuana. As of November 2014, over half of all states and the District of Columbia allow for medicinal use of marijuana, but do so in various ways. For example, while some states exempt qualified users of medical marijuana from state prosecution, others specifically authorize and regulate medical marijuana.

The CSA does not distinguish between the medical and recreational use of marijuana. Under the CSA, marijuana has "no currently accepted medical use in treatment in the United States," and states' allowance of its use for medical purposes appears to be at odds with the federal position. Federal law enforcement has investigated, arrested, and prosecuted individuals for medical marijuana-related offenses regardless of whether they are in compliance with state law. However, as discussed in the section on " Enforcement Priorities ," federal law enforcement emphasizes the investigation and prosecution of growers and dispensers over the individual users of medical marijuana.

Recreational Legalization

In contrast to marijuana decriminalization initiatives wherein civil penalties remain for violations involving marijuana possession, marijuana legalization measures remove all state-imposed penalties for specified activities involving marijuana. Until 2012, the recreational use of marijuana had not been legal in any U.S. state since prior to the passage of the CSA in 1970. The CSA explicitly prohibits the cultivation, distribution, and possession of marijuana for any purpose other than to conduct federally approved research. In November 2012, citizens of Colorado and Washington voted to legalize, regulate, and tax small amounts of marijuana for recreational use. In the November 2014 elections, legalization initiatives also passed in Alaska, Oregon, and the District of Columbia (DC), further expanding the disparities between federal and state marijuana laws in the United States.

These recreational legalization initiatives all legalize the possession of specific quantities of marijuana by individuals aged 21 and over and, with the exception of DC, set up state-administered regulatory schemes for the sale of marijuana; however, the initiatives also vary. For example, Colorado, Alaska, Oregon, and DC allow for individuals to grow their own marijuana plants while Washington Initiative 502 did not allow for private citizen cultivation. These legalization initiatives also specify that many actions involving marijuana remain crimes. For example, Washington Initiative 502 specifies that the operation of a motor vehicle while under the influence of marijuana remains a crime. Colorado's Amendment 64 allows any individual over the age of 21 to grow small amounts of marijuana for personal use, but specifies that marijuana may not be consumed "openly and publicly or in a manner that endangers others."

Legalization initiatives in the states reflect growing public support for the legalization of marijuana. As noted, just prior to passage of the CSA in 1970, 12% of surveyed individuals aged 18 and older felt that marijuana should be made legal. In 2014, more than half (52%) of surveyed U.S. adults expressed that marijuana should be legalized.

Enforcement Priorities: A Focus on Traffickers

Federal law enforcement has generally tailored its efforts to target criminal networks rather than individual criminals; its stance regarding drug (particularly marijuana) offenders appears consistent with this position. In the years since the enactment of the CSA and the establishment of the U.S. Drug Enforcement Administration (DEA), federal counter-drug efforts have largely been focused toward traffickers and distributors of illicit drugs, rather than the low-level users of illicit substances.

After some states began to legalize the medical use of marijuana, the Department of Justice (DOJ) reaffirmed that marijuana growth, possession, and trafficking remain crimes under federal law irrespective of how individual states may change their laws and positions on marijuana. DOJ has continued to enforce the CSA in those states, and federal agents and U.S. Attorneys have arrested and prosecuted medical marijuana producers (growers) and distributors for violations of federal drug laws regardless of their compliance with state laws.

DOJ has clarified federal marijuana policy through several memos providing direction for U.S. Attorneys in states that allow the medical use of marijuana. In the so-called Ogden Memo of 2009, Deputy Attorney General David Ogden reiterated that combating major drug traffickers remains a central priority and stated:

[t]he prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the [Justice] Department's efforts against narcotics and dangerous drugs, and the Department's investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.

In a follow-up memorandum to U.S. Attorneys, Deputy Attorney General James Cole restated that enforcing the CSA remained a core priority of DOJ, even in states that had legalized medical marijuana. He clarified that "the Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law."

In his memo, Deputy Attorney General Cole warned those who might assist medical marijuana dispensaries in any way. He stated that "persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities [emphasis added], are in violation of the Controlled Substances Act, regardless of state law." This has been interpreted by some to mean, for example, that building owners and managers are in violation of the CSA by allowing medical marijuana dispensaries to operate in their buildings. Deputy Attorney General Cole further warned that "those who engage in transactions involving the proceeds of such activity [cultivating, selling, or distributing of marijuana] may be in violation of federal money laundering statutes and other federal financial laws." This warning may be one reason why medical marijuana dispensaries have had difficulty accessing bank services.

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 for the Department of Justice:

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.

These priorities are to guide U.S. Attorneys and federal law enforcement to focus their resources and efforts on those who interfere with any of these priorities, regardless of state law. In an interview with ABC News, President Obama noted that "[it] would not make sense from a prioritization point of view for us to focus on recreational drug users in a state that has already said that under state law that's legal."

Of note, under the Supremacy Clause of the U.S. Constitution, state laws that conflict with federal law are generally preempted and therefore are void; however, courts have generally not viewed the relationship between state and federal marijuana laws in such a manner. Further, Congress did not intend that the CSA should displace all state laws associated with controlled substances.

It is unclear whether or how the Department of Justice is tracking activity to ensure that standards are being met in states that have legalized marijuana. At minimum, it appears that the DEA discusses trafficking issues with state and local law enforcement. According to DEA Administrator Michele Leonhart, there has been increased marijuana trafficking in states surrounding Colorado since Colorado legalized for recreational use.

Selected Counter-Drug Trafficking Efforts

As the Department of Justice (DOJ) has continued to focus its counterdrug efforts on large production and trafficking organizations, this section provides snapshots of selected federal law enforcement efforts to counter drug trafficking and associated criminal networks. The majority of these programs and initiatives are not drug type-specific, but rather focus on countering the manufacturing (including growth), transportation, and sale of illegal drugs in the United States. In addition, many federal counter-drug law enforcement efforts—including those discussed in this section—involve collaborations or partnerships with state and local law enforcement and include efforts to combat a vast range of illicit activities carried out by criminal networks.

High Intensity Drug Trafficking Areas (HIDTA) Program

The HIDTA program provides assistance to law enforcement agencies—at the federal, state, local, and tribal levels—that are operating in regions of the United States that have been deemed as critical drug trafficking regions. The program aims to reduce drug production and trafficking through four means: (1) promoting coordination and information sharing between federal, state, local, and tribal law enforcement; (2) bolstering intelligence sharing between federal, state, local, and tribal law enforcement; (3) providing reliable intelligence to law enforcement agencies such that they may be better equipped to design effective enforcement operations and strategies; and (4) promoting coordinated law enforcement strategies that rely upon available resources to reduce illegal drug supplies not only in a given area, but throughout the country. There are 28 designated HIDTAs in the United States and its territories. On the whole, the HIDTA program is administered by the Office of National Drug Control Policy (ONDCP) within the White House. However, each of the HIDTA regions is governed by its own Executive Board. Notably, "a central feature of the HIDTA program is the discretion granted to the Executive Boards to design and implement initiatives that confront the drug trafficking threat in each HIDTA region." Of note, "[m]ultiple HIDTA task forces may make up an overarching HIDTA enforcement or investigative initiative."

In May 2013, 21 individuals were arrested for their alleged roles in two overlapping drug trafficking rings—one distributing marijuana and the other, powder and crack cocaine. This case was investigated by the FBI, Madison-Morgan County (AL) HIDTA Task Force, as well as other federal, state, and local law enforcement agencies.

Organized Crime Drug Enforcement Task Force (OCDETF) Program

The OCDETF program targets—with the intent to disrupt and dismantle—major drug trafficking and money laundering organizations. Federal agencies that participate in the OCDETF program include the Drug Enforcement Administration (DEA); Federal Bureau of Investigation (FBI); Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); U.S. Marshals; Internal Revenue Service (IRS); U.S. Immigration and Customs Enforcement (ICE); U.S. Coast Guard (USCG); the 94 U.S. Attorneys Offices; and DOJ's Criminal Division. These federal agencies also collaborate with state and local law enforcement on the task forces. There are 11 OCDETF strike forces around the country as well as an OCDETF Fusion Center. The OCDETFs target those organizations that have been identified on the Consolidated Priority Organization Targets (CPOT) List, which is the "most wanted" list for leaders of drug trafficking and money laundering organizations. For FY2013, 16% (822 cases) of active OCDETF investigations were linked to valid CPOTs, and an additional 5% (275 cases) were also linked to Regional Priority Organization Targets (RPOTs).

In January 2013, an OCDETF operation in the Dallas-Fort Worth, TX, area resulted in the indictment of 20 individuals for their alleged roles in a marijuana trafficking conspiracy. The conspiracy reportedly involved distributing and selling drugs as well as laundering the monetary proceeds. The OCDETF investigation led to the seizure of over 600 marijuana plants, 25 pounds of hydroponic marijuana, 10 vehicles, and 5 firearms. The leader of the marijuana distribution conspiracy was sentenced to federal prison in April 2014.

Domestic Cannabis Eradication/Suppression Program (DCE/SP)

The DEA has indicated that "[m]arijuana is the only major drug of abuse grown within the U.S. borders." As one of its efforts to stop the growth of this illegal substance, the DEA funds the DCE/SP—a nationwide law enforcement program targeting the cultivation of marijuana by drug trafficking organizations. The DCE/SP was involved in the eradication of 4,033,513 cannabis plants that had been cultivated at 6,376 outdoor grow sites and 361,727 plants that had been cultivated at 2,754 indoor sites in 2013. Of note, there are no concrete data to delineate the proportion of domestically grown marijuana cultivated by drug trafficking organizations—separately from gangs or lone growers—nor are there reliable data on the amount cultivated by specific criminal networks.

In October 2012, the DEA (through the DCE/SP) and Arizona Department of Public Safety eradicated over 4,500 marijuana plants across four separate grow sites in Arizona. Each of these grow sites "had its own irrigation system powered by a pump that emitted water through an underground watering drip system."

Border Enforcement Security Task Force (BEST): Tunnel Task Force

The Border Enforcement Security Task Force (BEST) initiative, led by ICE within the Department of Homeland Security (DHS), is a series of multi-agency investigative task forces that aim to identify, disrupt, and dismantle criminal organizations posing significant threats to border security along the northern border with Canada and the Southwest border with Mexico as well as within Mexico. While the BEST initiative broadly targets criminal networks, tailored task forces have been established to target specific threats; in order to focus efforts on criminal networks exploiting the U.S.-Mexican border via underground tunnels (which have been primarily used to smuggle marijuana), ICE established the first tunnel task force in San Diego in 2003. The task force was created as a partnership between ICE, DEA, and the U.S. Border Patrol, along with state law enforcement and Mexican counterparts. The tunnel task force was incorporated into ICE's BEST initiative in 2006 in order to further enhance multilateral law enforcement intelligence and information sharing. Since 1990, over 150 tunneling attempts have been discovered along the U.S.-Mexican border.

In April 2014, the San Diego tunnel task force, along with Mexican counterparts, uncovered two sophisticated cross-border tunnels connecting commercial buildings in Otay Mesa, CA, with warehouses in Tijuana, Mexico. The tunnels were about 600 and 700 yards long, respectively, and were equipped with lighting, ventilation, and electric rail cars. They were two of seven underground, cross-border tunnels revealed in the San Diego area in fewer than four years.

Prosecutions and Convictions Data

In its drug-related investigations and prosecutions, federal law enforcement has focused more efforts on investigations of criminal networks and drug traffickers and has generally placed less emphasis on going after individuals for simple drug possession. Data from the U.S. Attorneys' case filings follow these patterns. As illustrated in Figure 1 , of the 13,383 drug cases filed in FY2013 with the U.S. Attorneys, 21% (2,841) were OCDETF cases. The remaining 10,542 non-OCDETF drug cases can be broken down between what the U.S. Attorneys categorize as drug dealing and drug possession cases; of these non-OCDETF cases, 99% (10,394) of cases filed were for allegations of drug dealing rather than drug possession. While these data suggest a general prioritization of drug trafficking cases over cases of possession, they do not detail trends in investigations and prosecutions of cases involving specific drug types such as marijuana.

The U.S. Sentencing Commission data provide more nuanced information relating to federal drug prosecutions resulting in convictions and sentences, including for those cases involving marijuana-related offenses. Of note, these data only reflect information on the primary offense for which any given offender was sentenced.

Of the 72,180 cases from FY2013 with sufficient information for Sentencing Commission analysis, 32% of the cases (23,179) were determined to be drug cases. Moreover, the vast majority (93%) of these drug cases were drug trafficking cases. As illustrated in Figure 2 , of the drug cases for which information on primary drug type was available, 4,942 cases (almost 22%) involved marijuana as the primary drug in FY2013. Of the drug cases with marijuana as the primary drug type in FY2013, nearly 98% involved a drug trafficking sentence.

Implications for Federal Law Enforcement

Federal, State, and Local Cooperation

As experts have noted, "[t]he federal government maintains the power to enforce federal law; however, it cannot compel states to assist in enforcing that law, and the states have no obligation to forbid the same drugs that the federal government forbids." As such, some policy makers may question whether the disparity between federal drug laws and those in states that have passed or enacted recreational legalization initiatives may pose challenges for the operation of collaborative law enforcement efforts and relationships—such as task forces and intelligence fusion centers in which federal, state, and local law enforcement all participate.

If, in a task force setting for example, state and local law enforcement prioritize going after marijuana users over traffickers and other members of criminal networks, there could be reasonable concerns regarding a lack of alignment between the drug enforcement priorities of the participating federal, state, and local agencies. However, most drug-related task forces with federal involvement appear to devote greater energy to identifying and apprehending individuals involved in criminal networks producing, transporting, and selling large quantities of drugs. As such, there is no evidence to suggest that the operation of these collaborative bodies will be impacted by the recreational legalization initiatives in the states.

Examining how task forces have responded to medical marijuana legalization initiatives may provide some insight into how they may operate with respect to recreational marijuana legalization initiatives. Consistent with the Administration's indication that federal law enforcement prioritizes the investigation and prosecution of drug trafficking organizations and criminal networks over low-level drug users, it appears that investigations and arrests relating to medical marijuana follow similar trends. Federal law enforcement press releases suggest that investigations relating to medical marijuana generally target individuals "who are in the commercial business of cultivating, selling, or distributing marijuana, and those who knowingly facilitate such activities ... and will not focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended medical treatment regimen consistent with applicable state law, or their caregivers."

In January 2013, the owner of two medical marijuana dispensaries in San Diego, CA, was sentenced for his role in distributing marijuana and laundering the proceeds. The investigation, conducted by the San Diego DEA's Narcotics Task Force and Internal Revenue Service (IRS), revealed that these dispensaries were grossing about $3.5 million each year. In May 2013, the owner of a medical marijuana dispensary in Sacramento, CA, was sentenced for his role in growing marijuana and operating the dispensary. The case was investigated by local law enforcement with assistance from the Sacramento HIDTA Task Force.

If federal law enforcement priorities relating to recreational marijuana in states that have passed such initiatives follow the enforcement priorities regarding medical marijuana in states such as California, observers may see a focus on investigating marijuana growers and commercial sellers and less emphasis on the individual users of recreational marijuana.

Synthetic Alternatives91

Officials began to see synthetic cannabinoids marketed as "legal alternatives to marijuana" in 2008. Synthetic cannabinoids are substances chemically produced to mimic tetrahydrocannabinol (THC), the active ingredient in marijuana. When these substances are sprayed onto dried herbs and then consumed through smoking or oral ingestion, they can produce psychoactive effects similar to those of marijuana. They are often sold as herbal incense, and common brand names under which synthetic cannabinoids are marketed are "Spice" and "K2."

At least 41 states and Puerto Rico have legislatively banned chemical substances contained in synthetic cannabinoids. In June 2012, Congress passed legislation (the Synthetic Drug Abuse Prevention Act of 2012—Subtitle D of Title XI of the Food and Drug Administration Safety and Innovation Act ( P.L. 112-144 )) that, among other things, permanently added "cannabimimetic agents" to Schedule I of the CSA.

The American Association of Poison Control Centers (AAPCC) noted that poison control centers around the country received 2,663 calls about synthetic cannabinoid substances in 2013. In the first 10 months of 2014, AAPCC logged 2,996 calls to poison control centers regarding these substances.

It is currently unclear whether synthetic alternatives will continue to be developed and consumed in an attempt to circumvent federal and state marijuana laws. Policy makers may be interested in following the trends in sales, arrests, calls to poison control centers, and emergency department visits related to synthetic cannabinoids in states that have legalized small quantities of marijuana for recreational use. It is currently unclear what kind of impact—if any—state decriminalization and legalization initiatives may have on the use of synthetic substances.

Legalization Impact on Criminal Networks

A number of criminal networks rely on profits generated from the sale of illegal drugs—including marijuana—in the United States. Mexican drug trafficking organizations control more of the wholesale distribution of marijuana than other major drug trafficking organizations in the United States. One estimate has placed the proportion of U.S.-consumed marijuana that was imported from Mexico at somewhere between 40% and 67%. While the Mexican criminal networks control the wholesale marijuana distribution of illicit drugs in the United States, they "are not generally directly involved in retail distribution of illicit drugs." In order to facilitate the distribution and sale of drugs in the United States, Mexican drug traffickers have formed relationships with U.S. street gangs, prison gangs, and outlaw motorcycle gangs. Although these gangs have historically been involved with retail-level drug distribution, their ties to the Mexican criminal networks have allowed them to become increasingly involved at the wholesale level as well. These gangs facilitate the movement of illicit drugs to urban, suburban, and rural areas of the United States. Not only do these domestic gangs distribute and sell the drugs, but they also "provide warehousing, security, and/or transportation services as well."

Barrio Azteca is a prominent U.S. prison gang with ties to Mexican drug trafficking organizations. Barrio Azteca primarily generates money from smuggling marijuana, heroin, and cocaine across the Southwest border for the drug trafficking organizations—namely, the Juárez cartel—but they are also involved in other crimes, such as extortion, kidnapping, and alien smuggling.

A number of organizations have assessed the potential profits generated from illicit drug sales, both worldwide and in the United States, but "[e]stimates of marijuana ... revenues suffer particularly high rates of uncertainty." The former National Drug Intelligence Center (NDIC), for instance, estimated that the sale of illicit drugs in the United States generates between $18 billion and $39 billion in U.S. wholesale drug proceeds for the Colombian and Mexican drug trafficking organizations annually. The proportion that is attributable to marijuana sales, however, is unknown. Without a 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.

Marijuana proceeds are generated at many points along the supply chain, including production, transportation, and distribution. Experts have debated which aspects of this chain—and the related proceeds—would be most heavily impacted by marijuana legalization. In addition, the potential impact of marijuana legalization in four of the 50 U.S. states and the District of Colombia (complicated by varying legal frameworks and regulatory regimes) may be more difficult to model than the impact of federal marijuana legalization. For instance, in evaluating the potential fiscal impact of the 2012 Washington and Colorado legalization initiatives on the profits of Mexican drug trafficking organizations, the Organization of American States (OAS) hypothesized that "[a]t the extreme, Mexican drug trafficking organizations could lose some 20 to 25 percent of their drug export income, and a smaller, though difficult to estimate, percentage of their total revenues."

Other scholars have, in estimating the potential financial impact of marijuana legalization, based their estimates on a hypothetical federal legalization of marijuana. Under this scenario, small scale growers at the start of the marijuana production-to-consumption chain might be put out of business by professional farmers, a few dozen of which "could produce enough marijuana to meet U.S. consumption at prices small-scale producers couldn't possibly match." Large drug trafficking organizations generate a majority of their marijuana-related income (which some estimates place at between $1.1 billion to $2.0 billion) from exporting the drug to the United States and selling it to wholesalers on the U.S. side of the border. This revenue could be jeopardized if the United States were to legalize the production and consumption of recreational marijuana.

Aside from the fiscal impact of U.S. marijuana legalization on drug revenues generated by the criminal networks in Mexico, some have also questioned whether there might be an impact on the levels of drug trafficking-related violence in Mexico. In short, there is no definitive answer to this question, and arguments have been presented to support both the stance that marijuana legalization in the United States could drive violence higher (because of increased competition for the scarce revenues that would be generated from an expected dwindling market of Mexican-produced marijuana) and the position that such legalization could help in reducing drug trafficking-related violence (because the profit motive for entering and dominating the drug trade might be reduced). Either way, "[a]ny changes in cannabis markets will take time to develop and may occur simultaneously with other changes that also affect violence rates in Mexico."

The diversification of drug trafficking organizations' illicit activities could also mitigate the impacts they might feel from various levels of marijuana legalization in the United States. While these criminal networks might generate a substantial portion of their proceeds from the growth, production, transportation, and sale of marijuana, they have enhanced their dominance over the market of other illicit substances. Mexican drug trafficking organizations control more of the wholesale cocaine, heroin, and methamphetamine distribution than any other major drug trafficking organizations in the United States. In addition to their drug-related illegal activities, Mexican criminal networks have diversified their operations, adding to their portfolio crimes ranging from kidnapping and extortion to human trafficking and intellectual property rights violations. Profits from these enterprises may help supplement their drug trafficking-related income.

Going Forward: Congressional Options

Given the differences in marijuana policies of the federal government and those of Alaska, Colorado, Oregon, Washington, and the District of Columbia, Congress may choose to address state legalization initiatives in a number of ways, or not at all. There are a host of options available to policy makers should they choose to address state-level legalization of marijuana, including affirming federal marijuana policy, exercising oversight over federal law enforcement activities, or incentivizing state policies through the provision or denial of certain funds. Alternatively, Congress may opt not to address the policy conflict with state legalization of marijuana.

Federal Marijuana Policy—The Controlled Substances Act

For over 40 years, the federal government's official position, as implied by sustaining marijuana's position as a Schedule I controlled substance under the CSA, has been that marijuana is a dangerous drug with no accepted medical use and a high potential for abuse. Since passing the CSA, Congress has not altered marijuana's status as a Schedule I drug.

In addressing states' most recent legalization efforts, Congress could take one of two general routes. On one hand, Congress could elect to take no action, thereby upholding the federal government's current marijuana policy. On the other hand, Congress could choose to reevaluate marijuana's placement as a Schedule I controlled substance. On this path, Congress could consider a variety of actions. For one, it could once again exercise its authority to establish a policy commission to examine marijuana, its impacts, and the efficacy of current marijuana laws in the United States, just as it did in establishing the Shafer Commission. Additionally, Congress could direct the Secretary of Health and Human Services (HHS) and/or the Attorney General to reevaluate marijuana and its position within the schedules of controlled substances. Of note, the Attorney General—through the DEA, and in consultation with the Secretary of HHS—may reschedule a substance or remove a substance altogether from control.

In addition to establishing commissions and directing additional research, congressional options include legislatively amending the CSA. This could involve keeping—with caveats—marijuana as a Schedule I substance, moving it to a different schedule, or removing it from the schedule altogether. Without altering marijuana's position as a Schedule I controlled substance on the whole, one option might be to build additional flexibility into existing law. For example, policy makers could amend the CSA to make certain criminal liability exceptions for individuals operating in compliance with state marijuana laws.

Upon reevaluation, should Congress determine that marijuana no longer meets the criteria to be a Schedule I substance, it could take legislative action to remove marijuana from Schedule I of the CSA. In doing so, Congress may (1) place marijuana on one of the other Schedules (II, III, IV, or V) of controlled substances or (2) remove marijuana as a controlled substance altogether; however, if marijuana remains a controlled substance under the CSA under any Schedule, then this would not eliminate the existing policy conflict with those states that have legalized to allow recreational use. If Congress chooses to remove marijuana as a controlled substance, it could alternatively seek to regulate and tax marijuana. If Congress were to take this route of legalizing and regulating marijuana, and given agencies' current authorities over controlled and legal substances, one path may then be to transfer jurisdiction over marijuana from the DEA to the ATF for regulation.

Oversight of Federal Law Enforcement Activities

Review of Agency Missions

In exercising its oversight authorities, Congress may choose to examine the extent to which the carrying out of federal law enforcement missions might be impacted by state initiatives to decriminalize or legalize—either for medical or recreational purposes—marijuana. For instance, policy makers may elect to review the mission of each federal law enforcement agency involved in enforcing the CSA and examine how its drug-related investigations may be influenced by the varying state-level policies regarding marijuana. As noted, federal law enforcement has generally prioritized the investigation of drug traffickers and dealers over that of low-level drug users. Policy makers may question whether these priorities are consistent across states with different forms of drug policies regarding marijuana. Policy makers may question whether federal law enforcement priorities have shifted in states that have altered their marijuana laws and regulations.

Cooperation with State and Local Law Enforcement

With respect to the coordination of federal, state, and local efforts to combat drug trafficking networks and other drug offenders, one issue policy makers may debate is whether or how to incentivize task forces, fusion centers, and other coordinating bodies charged with combating drug-related crimes. Before determining whether to increase, decrease, or maintain funding for coordinated efforts such as task forces, policy makers may consider whether state and local counterparts are able to effectively achieve task force goals if the respective state marijuana policy is not in agreement with federal marijuana policy. Policy makers may choose to evaluate whether certain drug task forces are sustainable in states that have established policies that are either inconsistent—such as in states that have decriminalized small amounts of marijuana possession—or are in direct conflict—including states that have legalized either medical or recreational marijuana—with federal drug policy. For instance, might there be any internal conflicts that prevent task force partners from collaborating effectively to carry out their investigations?

Oversight of Federal Enforcement Priorities

As noted, in responding to states with recreational legalization initiatives, the Department of Justice (DOJ) issued federal enforcement priorities for states with legal marijuana. It is unclear whether or how DOJ is tracking activity in these states to ensure that these priorities are being emphasized. The metrics to evaluate these priorities, whether in place or not, are also unknown. For example, one of the eight enforcement priorities listed by Deputy Attorney General Cole was to prevent the diversion of marijuana to other states. While it seems the DEA is aware of increased marijuana trafficking from Colorado to Kansas, it is unclear what level of increased trafficking might trigger action by the federal government against state marijuana laws. Congress may choose to exercise oversight over DOJ's enforcement priorities and metrics for tracking illicit activity in the states. Congress may also request research or investigation of this issue outside of actions by the Obama Administration.

Policy-Linked Funding for States

Congress has long used the provision of monies as a carrot to influence states' policies. If policy makers are interested in affecting states' drug policies, one means may be through some form of policy-contingent funding. For instance, Congress could consider compliance with federal marijuana policy as an eligibility requirement to receive certain federal grant funds. In the past, Congress has exercised its authority to withhold federal grant funds to states in order to achieve agreement with federal policy. For example, under the Sex Offender Registration and Notification Act (SORNA; P.L. 109-248 ), Congress established a set of minimum standards for sex offender registration and notification for all 50 states, the District of Columbia, territories, and federally recognized American Indian tribes. To assure compliance with these standards, SORNA mandated a 10% reduction in annual formula funding under the Edward Byrne Memorial Justice Assistance Grant (JAG) Program for the states, territories, and District of Columbia if these jurisdictions did not substantially implement SORNA by July 27, 2009. Congress may choose to establish similar financial penalties to influence states' drug policies or ensure consistency between state-level laws and those outlined under the CSA.

Whether or not linking funding to state-level compliance with federal drug policy standards might produce the desired outcomes is unknown. One question that remains is whether Congress could withhold sufficient money from programs such as JAG to provide a true incentive for states to acquiesce to federal drug policy requirements. Might states that legalize and tax marijuana generate enough revenue to offset any losses from grant program funding that Congress might impose? In addition, could states see some savings in criminal justice expenditures from not investigating, prosecuting, and incarcerating low-level marijuana offenders? These savings could also compensate for any losses from congressionally imposed financial penalties.