Atty. General Eric H. Holder Jr.: States to get guidance on legalized marijuana

Conflict with federal law at issue

U.S. Attorney General Eric H. Holder Jr. said Tuesday that federal guidance on new laws legalizing marijuana in Colorado and Washington state is imminent as state officials have been forced to tread cautiously in their efforts to implement the laws.

Mr. Holder, speaking at a meeting of the National Association of Attorneys General in Washington, said the Justice Department was in its final stages of reviewing the initiatives and their policy implications and that the answer would come “relatively soon.”

“I would say, and I mean this, that you’ll hear soon,” he said after being asked about it by Colorado Attorney General John W. Suthers, a Republican.

It will be a long time coming for Mr. Suthers, who, along with Democratic Gov. John W. Hickenlooper, said he asked Mr. Holder on the Friday after Election Day whether they could have clarification by Jan. 10, or the start of the state’s legislative session.

Voters approved November ballot initiatives in both states to legalize the possession and sale of small amounts of marijuana for recreational purposes. But the use of the drug still violates the federal Controlled Substances Act — a contradiction that has left officials begging for guidance.

“Well gosh darn it, the federal government’s always there when you don’t need them, and they don’t show up when you do need them,” Mr. Suthers said earlier Tuesday in a wide-ranging discussion with reporters and editors at The Washington Times. “This is a perfect example of it. Because if you’re going to be assertive and aggressive then we’re going to tell the legislature one thing. If you’re going to say, ‘whatever you want to do,’ that’s another thing.”

Both Mr. Hickenlooper and Mr. Suthers opposed the legalization effort in Colorado. States are worried they could be sued by the federal government, depending on how it chooses to interpret, enforce and prosecute the law — and signals have been mixed over the past few years.

A 2009 memo, issued by U.S. Deputy Attorney General David W. Ogden, reminded federal prosecutors that “no state can authorize violations of federal law” while also advising U.S. attorneys not to target individuals acting in compliance “with existing state laws providing for the medical use of marijuana.”

But last summer, the Justice Department appeared to shift course in a letter to U.S. attorneys that signaled they should not acquiesce to those who cultivate or sell marijuana.

Marijuana has been legalized for limited medical use in 18 states, as well as the District of Columbia, where applicants had to sign waivers releasing the city from liability if the federal government prosecuted the program’s participants. To proponents of medical marijuana, the Justice Department’s letter served as a reminder of the tenuous relationship between local and federal views on medicinal marijuana use.

But Mr. Suthers speculated that the new guidance would hew more to the Ogden memo and let the states have the latitude to enforce their laws even if they conflict with federal law.

“But we’re moving ahead — we’ve got a task force that’s making all kinds of recommendations as to how we implement this,” he said. “Everybody’s waiting to see what the feds are going to say.”

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