Last week I wondered whether the
failure of medical marijuana legislation in Washington will
prompt a federal crackdown on dispensaries now that state-licensed
pot shops are on the verge of opening. KUOW, the NPR station in
Seattle, put that question to Jenny Durkan, the U.S. attorney for
the Western District of Washington, in an
interview on Friday. Durkan’s response was an interesting
mixture of bluster and hedging. She insisted that the dispensaries,
which operate as “collective gardens” under creative
interpretations of Washington law but are not regulated by the
state, are illegal in every respect. “Under Washington state law,
dispensaries are not legal,” she said. “Every dispensary that is
operating is an illegal business.” At the same time, she suggested
that her office will take action against dispensaries only if “they
cross the line into implicating one of the public-interest factors
that the Department of Justice has cited.”
Durkan was referring to the “enforcement priorities” listed in
Deputy Attorney General James Cole’s
August 29 memo advising federal prosecutors on how to deal
with marijuana businesses that comply with state law. Cole
suggested that prosecuting such businesses generally would not be a
good use of federal resources unless it was aimed at addressing one
or more of eight concerns, including violence, trafficking in other
drugs, involvement by organized crime, and diversion of marijuana
to minors or other states. Durkan seems to be extending that
prosecutorial forbearance even to businesses that, in her view, do
not comply with state law, provided that do not pose any of the
threats mentioned by Cole. Furthermore, she seems to be sticking to
those eight priorities, although Cole warned that “nothing herein
precludes investigation or prosecution, even in the absence of any
one of the factors listed above, in particular circumstances where
investigation and prosecution otherwise serves an important federal
interest.”
Durkan’s description of her office’s drug-related work offers
further reason to think closing down dispensaries won’t be a high
priority for her:
The vast majority of the cases we bring are cases that involve
or implicate Mexican [cartels]. There are huge quantities of
cocaine, heroin, methamphetamine, and bulk cash being transported
internationally and between states. That’s where we’re going to
focus our resources. We do not have the resources, nor is it our
job, to focus on smaller drug cases that can be handled
locally.
Still, Durkan, who last year
said the continued operation of dispensaries is “not tenable,”
emphasized that the Justice Department expects Washington to
develop and enforce “a strong, robust regulatory system” and that
dispensaries “fall outside the state regulatory framework.”
Although “it’s not our job to tell them…what they need to do,”
she said, Washington cannot deliver proper regulation as long
as there is “a huge system of illegal entities in the same business
and you don’t do anything to curtail that.”
Despite the Justice Departnent’s desire for strict regulation,
the Associated Press
reported on Friday, the FBI is refusing to run criminal
background checks on people applying for marijuana licenses in
Washington, although it has performed that function for marijuana
regulators in Colorado. “We are evaluating what the background
check policy for the FBI will be,” Durkan said. “The systems may be
very different in terms of what the FBI is being asked to do.” Then
she implied that Washington’s regulators are acting like spoiled,
irresponsible teenagers:
The state is the one that decided it wanted to embark on this
course. Having a comprehensive regulatory capability means you have
the ability to make sure you are not putting criminals in the
business. I liken it to my own own life, that on one hand my
teenager may want to have a lot of independence and take the car
and in the next breath he’s asking me for money for gas. The state
has to be able to stand up a very strong, comprehensive regulatory
framework to make sure that this works. That’s their job; that’s
their obligation.
If the Justice Department really wants what Cole called “strong
and effective regulatory and enforcement systems,” this sort of
tough love does not make much sense. To use Durkan’s condescending
analogy, the FBI is taking away the car instead of declining to pay
for the gas.
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