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Getting in the Weeds with Marijuana Legalization

Posted on February 02, 2016

In 2012, Colorado and Washington became the first states to pass ballot initiatives legalizing marijuana for recreational purposes under state law. The initiatives allowed for personal possession of up to an ounce of marijuana for those at least 21 years of age. They also required the states to establish regulatory and enforcement systems to control the production, processing, and sale of marijuana.

But how do state laws square with federal law that prohibits people from growing, selling, or possessing marijuana?

Listen to our latest podcast with Jennifer Grover, a director in our Homeland Security and Justice team, and read on for answers about how the new laws are playing out  in Colorado and Washington, and the Department of Justice’s response.

State Marijuana Laws

Regulating recreational marijuana

When Colorado and Washington legalized recreational marijuana, both of their ballot measures called for accompanying regulatory systems, which the states began implementing in 2014. Generally, the two states’ systems share similar features, including:

  • Licensing for those who produce, process, sell, or test marijuana products
  • Background checks for those applying for a license
  • Facility security measures, such as perimeter fencing or alarm systems, to combat theft at recreational marijuana facilities
  • Inventory tracking systems that are electronic and use unique ID tags attached to marijuana plants and marijuana-infused products
  • Product labeling and packaging that clearly states when a product contains marijuana and warns about potential health impacts

Figure 5: Marijuana Plants with Inventory-Tracking System Tags at Colorado and Washington Recreational Marijuana Facilities

(Excerpted from GAO-16-1

 DOJ’s marijuana enforcement priorities

While many states have legalized marijuana for either medical or recreational use, marijuana is classified under federal law in the most restrictive category of controlled substances.

The Department of Justice is responsible for enforcing federal law, and has recently updated its guidance to federal prosecutors on marijuana enforcement policy in response to state legalization. In several memos issued since 2009, DOJ stated that it is committed to continuing to enforce federal marijuana laws.

But DOJ also directed U.S. Attorneys to focus their resources on the most significant threats to public health and safety, such as drug traffickers, rather than, for example, people who possess small amounts of marijuana.

In 2013, DOJ further outlined 8 marijuana enforcement priorities, saying it expected that state and local governments that have legalized marijuana will implement strong and effective regulatory and enforcement systems to address the threat their laws could pose to these 8 priorities.

Figure 2: DOJ’s Marijuana Enforcement Priorities as Outlined in the August 2013 Marijuana Enforcement Guidance

(Excerpted from GAO-16-1

Monitoring effects of state legalization

DOJ reported monitoring the effects of states’ marijuana legalization against federal enforcement policy in two general ways. First, DOJ takes law enforcement actions against marijuana cases that threaten any of the 8 federal enforcement priorities.

Second, DOJ reported using various sources of information—such as federal surveys on drug use, state and local research, or feedback from state and local law enforcement officials—to monitor the effects of states’ legalization systems.

We found, however, that DOJ hasn’t documented its plan for its monitoring efforts. For example, DOJ hasn’t specified what sources of data it will use and how it will use the information to monitor states’ protection of federal marijuana enforcement priorities.

We recommended that DOJ document such a plan and make sure it is shared among DOJ agencies that have a role in the  monitoring efforts.

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