Federal law gives the Justice Department better options in dealing with marijuana legalization in Colorado and the state of Washington than a complete crackdown, simple acquiescence or a policy of muddling through, according to an article by Mark Kleiman , professor of public policy at the UCLA Luskin School of Public Affairs.
The paper, published August 21 in the Journal of Drug Policy Analysis, argues that contracts between the federal government and the states could allow the states to freely operate their voter-approved systems in return for the states' help in preventing interstate shipments of marijuana.
"The U.S. attorney general is caught between his obligation to enforce the federal law and the lack of adequate capacity to enforce it effectively without state and local help," Kleiman said. "Contractual agreements, which are provided for in the law, may be the only workable option he has for preventing Washington and Colorado from flooding the country with high-potency, low-price marijuana."
Federal law forbids marijuana, but the federal government — with only 4,000 drug enforcement agents, compared with more than a half million state and local police — lacks the capacity to enforce that law without the active help of state and local governments. More than 90 percent of marijuana-dealing arrests are made at the state and local levels.
The decisions by voters in Washington and Colorado to allow the taxed and licensed sale of marijuana put the Justice Department in a difficult position. It could crack down on the state-licensed systems, but as a practical matter could not prevent an explosion of illegal growing — not only for use in those states, but for interstate sale — unless Colorado and Washington help out.
The law allows the attorney general to enter into "contractual arrangements" with the states for "cooperative enforcement and regulatory activities" for drug abuse control, "notwithstanding any other provision of law" (21 U.S.C. Section 873; full text below).
Kleiman proposes that the attorney general should use that authority to make contracts with the two states under which their state-licensed production and sales systems would be allowed to operate, while the federal government and state and local authorities combined to shut down illegal growing, especially for export across state lines.
The paper also offers another alternative: Congress could pass new legislation allowing the legalization of cannabis on a state level under "policy waivers" that would require states to meet certain conditions, including the prevention of marijuana exports. Such an approach would clarify the legal status of state-licensed marijuana businesses, but it seems unlikely that a new federal law could be enacted before the Colorado and Washington systems start sales to consumers.
"Kleiman makes a strong argument that the alternatives now being considered are thoroughly unsatisfactory," said Peter Reuter, professor of public policy and criminology at the University of Maryland, who approved the paper for publication on the basis of academic peer reviews. "His two proposals are clever and logically sound. Whether they are politically practicable remains to be seen."
In addition to his teaching duties at UCLA, Kleiman is a member of the Committee on Law and Justice of the National Research Council. He is a co-editor of the Journal of Drug Policy Analysis and co-author (with Jonathan Caulkins, Angela Hawken and Beau Kilmer) of Marijuana Legalization: What Everyone Needs to Know  (Oxford University Press, 2012). He also heads BOTEC Analysis Corporation, which has provided decision support to the Washington State Liquor Control Board in designing that state's cannabis regulations. But, according to Kleiman, the paper is purely an academic venture with no input from anyone in Washington state government.
"The Liquor Control Board didn't ask me to write this paper, they didn't pay for it, they haven't seen it and they're not responsible for it," said Kleiman. "Right or wrong, these are my ideas and Eric Sterling's."
Sterling, president of the Criminal Justice Policy Foundation, is credited in the paper for raising the idea of "contractual agreements."
Controlled Substances Act, Title 21. Section 873, Cooperative arrangements
(a) Cooperation of Attorney General with local, State, and Federal agencies
The Attorney General shall cooperate with local, State, and Federal agencies concerning traffic in controlled substances and in suppressing the abuse of controlled substances. To this end, he is authorized to [emphasis added]:
(1) arrange for the exchange of information between governmental officials concerning the use and abuse of controlled substances;
(2) cooperate in the institution and prosecution of cases in the courts of the United States and before the licensing boards and courts of the several States;
(3) conduct training programs on controlled substance law enforcement for local, State, and Federal personnel;
(4) maintain in the Department of Justice a unit which will accept, catalog, file, and otherwise utilize all information and statistics, including records of controlled substance abusers and other controlled substance law offenders, which may be received from Federal, State, and local agencies, and make such information available for Federal, State, and local law enforcement purposes;
(5) conduct programs of eradication aimed at destroying wild or illicit growth of plant species from which controlled substances may be extracted;
(6) assist State and local governments in suppressing the diversion of controlled substances from legitimate medical, scientific, and commercial channels by:
(A) making periodic assessments of the capabilities of State and local governments to adequately control the diversion of controlled substances;
(B) providing advice and counsel to State and local governments on the methods by which such governments may strengthen their controls against diversion; and
(C) establishing cooperative investigative efforts to control diversion; and
(7) notwithstanding any other provision of law, enter into contractual agreements with State and local law enforcement agencies to provide for cooperative enforcement and regulatory activities under this chapter [emphasis added].
The UCLA Luskin School of Public Affairs , founded in 1994 and dedicated in 2011, is a leading institution for research and scholarship in the areas of public policy, social welfare and urban planning. Based in the global metropolis of Los Angeles, UCLA Luskin develops creative solutions and innovative leaders that confront challenges in immigration, drug policy, prison reform, transportation, the environment, and other areas vital to the continued health and well-being of our global society.