Last year, Attorney General Holder issued “guidance” urging federal prosecutors to avoid enforcing marijuana laws in states that have decriminalized marijuana. Similar to the immigration context, I think such a categorical suspension of the law can hardly be justified under the auspices of (our favorite) “prosecutorial discretion.” Likewise, the AG has decided not to enforce financial regulations against banks that deal with marijuana distributors. Of course, none of this was an actual exemption from prosecution. Banks aren’t stupid. They won’t listen to such hollow assurances. The Attorney General in 2017 can turn around and prosecute every single person who violated these statutes (so long as the Statute of Limitation had not run).
The way to exempt people from a law the executive dislikes is not through prosecutorial discretion, but through an act of Congress. And now, it seems the Cromnibus bill (which I hear is quite cromulent) will do just that. Think Progress reports:
But if the now-foundering budget deal dubbed Cromnibus or another similar one manages to pass, it will also have some much better news for marijuana advocates. Another provision added to the budget would protect medical marijuana laws in every state that has legalized it, by prohibiting the Department of Justice from using federal funds to prosecute medical marijuana actors in states where their actions are legal.
Here is the text of Rep. Rohrabacher’s amendment:
SEC. ll. None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
This is the correct way to exempt people from the prosecution of the law. It is especially reassuring that the law promotes federalism, and allows the states to experiment with policy, unencumbered from federal dictates.
I hope future Congresses codify the Executive’s decision not to prosecute certain crimes, rather than the Executive taking the responsibility himself.