How Prosecutors Are Responding to Shifting Views on Marijuana

This is part of an ongoing series from the National District Attorneys Association highlighting local criminal justice issues. Previous articles can be found here.

The public’s attitude toward marijuana has shifted in recent years. It is now permissible in a majority of states to possess marijuana for purported medicinal reasons, and a growing number of states permit possession of marijuana for recreational use. Proponents of marijuana legalization are spending millions of dollars in other states to change laws prohibiting the possession and distribution of marijuana through voter referendums, and sometimes through the actual legislative process.

Yet it remains illegal under federal law to possess, cultivate, use, or distribute marijuana.  Despite the fact that Congress has not changed the law, the Obama Administration directed federal law enforcement authorities not to enforce federal laws regarding marijuana in many circumstances. That decision effectively opened the door to states like Colorado, California, and others to permit sales of marijuana for purely recreational purposes and allowed many other states to continue to permit sales for purported medicinal reasons that are nevertheless prohibited by federal law.

All that could change under the Trump Administration. Attorney General Jeff Sessions has made no secret of the fact that he believes marijuana is a dangerous drug. With a stroke of a pen, he could effectively reverse former Attorney General Eric Holder’s hands-off approach to enforcement of federal anti-marijuana laws.

Despite these shifting views on marijuana from the public and government, state prosecutors were largely absent from the debate on the national stage. This was true even though the overwhelming majority of marijuana cases are handled by state and local prosecutors.

The National District Attorneys Association (NDAA), the nation’s largest and oldest prosecutor organization, recently filled that void with the release of a 16-page report entitled “Marijuana Policy: The State and Local Prosecutors’ Perspective.”

The report was initially drafted by a working group of 27 prosecutors from across the nation, each of whom brought a unique perspective to the issue. Some of those prosecutors hailed from states where marijuana is legal to possess for recreational purposes under state law. Others were from states where possession of marijuana is legal for purported medicinal reasons. And still others work in states where marijuana laws more closely track federal law—meaning possession, cultivation, or distribution of marijuana remains illegal for any reason.

While those prosecutors had varying opinions regarding marijuana, they forged a consensus on four important issues: consistent drug enforcement policy; support for marijuana research; the dangers of marijuana-impaired driving; and the importance of keeping marijuana away from children.

First, prosecutors believe that federal drug enforcement policy regarding the manufacture, importation, possession, use and distribution of marijuana should be applied consistently across the nation to maintain respect for the rule of law. While NDAA stopped short of taking a position on what the federal government’s drug enforcement policy should be, prosecutors feel strongly that consistent enforcement is crucial.

Prosecutors observed that state laws that authorize the possession, production, use, and distribution of marijuana are subject to preemption by federal drug laws that prohibit those same activities. Marijuana has been listed as a Schedule I drug since Congress first passed the Controlled Substances Act (CSA) in 1970. Schedule I drugs are considered to have a high potential for abuse, no currently accepted medical use, and lack accepted safety for use under medical supervision. Multiple requests to move marijuana from Schedule I, including one as recently as 2016, have been rejected by the federal Drug Enforcement Agency (DEA).

The Supremacy Clause of the United States Constitution dictates that federal law preempts state law. Accordingly, while a state may choose not to criminalize marijuana, a state law that affirmatively authorizes the production, distribution, and use of marijuana is subject to preemption by the federal laws to the contrary. Preemption issues—which are already being litigated—could become particularly troublesome if the federal government chooses to enforce the CSA’s ban on marijuana in states that have allowed production, distribution, or use of marijuana for recreational or purported medicinal purposes.

Second, prosecutors voiced their strong support for ongoing research into medicinal uses of marijuana and its derivatives, carried out in a consistent manner with federal law. The NDAA report specifically lauded the existing efforts by the National Institute of Drug Abuse (NIDA) to increase the amount of research-grade marijuana available to fill researchers’ needs as well as the Food and Drug Administration (FDA) waiver program for researchers conducting clinical trials on one of marijuana’s components that is showing promise, cannabidiol (CBD). Prosecutors also called for additional research to quantify the adverse effects of marijuana use on driving and to set standards for driver impairment.

Third, prosecutors called attention to the growing problem of marijuana-impaired driving. Data from the National Highway Traffic Safety Administration’s (NHTSA) 2013-2014 roadside survey of weekend nighttime drivers showed that 8.3 percent had some alcohol in their system and 12.6 percent tested positive for THC—an increase of 48 percent percent from that number in 2007.

Given that a majority of states have legalized marijuana for medical or recreational use, marijuana-impaired driving cases will continue to present unique challenges for prosecutors.  While it is beyond dispute that marijuana impairs cognitive function, driving performance, and increases crash risk, scientific studies have not yet settled on a “per se” level of marijuana similar to the 0.08 blood alcohol standard for impaired driving legislation.

Fourth, one of the most significant concerns about the increasing availability of marijuana is its access to youth. The science is clear that use of marijuana during adolescence adversely affects brain development, particularly the part of the brain that regulates complex cognitive behavior, personality expression, decision making and social behavior.

Prosecutors observed that youth who use marijuana are at greater risk of using other illegal drugs. For example, a study by Columbia University’s National Center on Addiction and Substance Abuse indicates that teens that use marijuana at least once a month are 13 times more likely than other teens to use another drug like cocaine, heroin, or methamphetamine.

Marijuana policy in the United States has evolved over the years, and enforcement of that policy has varied from administration to administration. What has not changed is the mission of prosecutors to protect the communities they serve. Part of that mission involves engaging in legal and policy discussions despite an ever-changing landscape, including on the subject of marijuana. NDAA’s recent report puts prosecutors on the map on this rapidly-evolving issue.