How Will New Federal Drug Policy Guidelines Play Out In San Diego?

CAVANAUGH: This is KPBS midday Eidation. This was an interesting month, not just in San Diego politics, but also in terms of federal drug policy. The U.S. Department of Justice unveiled two directives, one which said the DOJ would not sue two states that have recently legalized recreational marijuana use. And the other with more far-reaching implications, attorney general Eric holder's new policy aimed at reducing the number of minimum mandatory sentences for drug offenders. Joining me to discuss the changes is my guest, Alex Kreit, associate professor of law at the Thomas Jefferson school of law, and former chair of the San Diego medical marijuana task force. KREIT: Great to be here. CAVANAUGH: I'd like to start by asking you to explain what the justice department is saying about the recreational marijuana laws passed by Washington and Colorado. KREIT: Well, this memo says a couple of things. I think one of the most definitive things is it says it's not going to sue Washington or Colorado at least at this time to try and block the marijuana laws there outright. That is I think big news in some ways. In other ways, it's not too much of a surprise. To those of us who have been following the legal issues closely, they've never sued any state, any locality to try and block medical marijuana laws, and legally they're in a very similar position. So for that reason, I always thought it was a long-shot or unlikely that they would sue Washington or Colorado and try and block those laws. But now we know for sure. CAVANAUGH: Even though marijuana use remains a schedule 1 illegal drug to the federal government, U.S. attorneys will not in Colorado and Washington prosecute recreational use? KREIT: Well, so they said that definitively they're not going to be suing Washington and Colorado state right now. It's a different matter of whether they're going to prosecute individuals who are growing marijuana, distributing marijuana, that sort of thing, for recreation or medicinal uses. This memo does seem to give some additional guidance to U.S. attorneys saying in general it's not a good use of resources to go after and prosecute people who are in compliance with state law. That's the case even if you're running a business of a large scale. The thing of it is though, in 2009 there was a similar memo, and there were reports in the New York Times saying they're not going to prosecute people. And of course they continued prosecuting people. I think it's a little bit -- reminded me of the Bushism, fool me once, shame on you, fool me twice, can't get fooled again. The proof will be in the pudding. This memo says, indicates that local federal prosecutors shouldn't be using resources to go after people in compliance with state medical marijuana and marijuana laws. But will they actually follow that directive? CAVANAUGH: To be clear, the Department of Justice says prosecutors in Washington and Colorado should not waste resources prosecuting individuals or businesses providing mac for recreational use which is legal in both those states, but it's left up to their discretion? KREIT: Exactly right. And that also encompasses states with medical marijuana laws too, this new memo. So ultimately the last paragraph in the memo says it's still in the discretion of local prosecutors. One of the big question marks is how much internal oversight is there going to be if any in the Department of Justice? They say it's in your discretion, but if you don't follow this in good faith, we're going to be looking over your shoulder and there might be some repercussions. Or is it really just going to be left up entirely to the local U.S. attorneys to decide what to do? CAVANAUGH: So therefore is there cause to be wary of what the feds ultimately will do to recreational marijuana users in Washington and Colorado? KREIT: I do think it's important to distinguish between the users and businesses. Individuals really have never been in any great danger of federal prosecution simply because of resources. If you look at the numbers, there's 650 thousand arrests for marijuana possession in this country, and less than 1 thousand federal marijuana cases. If you're an individual user, you're likely to get arrested in a traffic spot or some sort of local police encounter. So I think users are just unlikely in general to be prosecuted. CAVANAUGH: But there are people who have served jail time. KREIT: Certainly. But the likelihood of being prosecuted federally for marijuana possession is always pretty minimal. Where there is some more risk is the person who wants to open up a business in Washington or Colorado who goes to get one of those licenses. This memo gives them some measure of hope that they might not be prosecuted federally because it does advise U.S. attorneys not to go after these people, use their resources for that purpose. At the same time, it doesn't say they can't do it. If I was an attorney advising somebody in Washington or Colorado who said I want to get one of these licenses, the first thing I would say is if you do and you open up, you could be prosecuted federally, and you could be facing a long mandatory minimum sentence. CAVANAUGH: Let's bring if back to California. Does this have any implication for medical marijuana use here in California, specifically in San Diego? U.S. attorney Laura Duffy's office has closed down virtually all the clinics in San Diego. So do you see any implications, any crossover between this memo for Washington and Colorado and us here? KREIT: I think that there is some potential there. The memo does encompass medical marijuana states as well as the prosecutorial discretion. It makes clear that prosecutors should look to the nature of state and medical regulations. So there may be some potential that that directive could open up perhaps an avenue for discussion. Laura Duffy is the current U.S. attorney, she could say, look, here's the directive, it says how well regulated this is, and her office believes it's not been well regulated in San Diego. Maybe this memo could provide some room for discussion with her office to say, okay, let's get on the same page. What kind of regulations would your office want to see to have confidence in what's going on? But that's certainly up to Laura Duffy and her office, as far as whether they are interested in having that conversation. CAVANAUGH: Laura Duffy's office did send us a statement last week in response to the Department of Justice memo. It reads in part "state and local regulatory schemes must be tough in practice and include strong state-based enforcement efforts. When enforcement is inadequate, this office will act to bring individual prosecutions." So if the state enforcement is not strong enough according to the U.S. attorney's office, then the U.S. attorney prosecutions will continue. KREIT: Exactly. And I think in particular, it's the enforcement but also the regulations that are being enforced. And right now in San Diego, we don't have any ordinance regulating this. CAVANAUGH: I want to make sure that everyone knows we have Laura Duffy's full statement on our website at KPBS.org. I'm just wondering, this whole situation is so confusing, there any precedent to this situation where something is a serious crime, according to federal law, and legal according to state law? Whether that's medical marijuana here in California or recreational use in Washington and Colorado. KREIT: Well, there's the example of alcohol prohibition. But I think that was a much -- it didn't last nearly as long as we've lasted here in California. We have had medical marijuana since 1996. So this really I think is kind of an unprecedented situation, to have this degree of conflict. The federal government is so reliant on states to enforce anti-drug laws. So when a state or locality says we just don't want to do that anymore, it causes a lot of friction. And I think that's what we're seeing playing out here. CAVANAUGH: Lots of times when you hear about a federal law, it is supposed to trump state law. That's sort of the standard. In this case, the federal government seems almost confused as how they want to proceed. KREIT: They've got a legal problem. There is what the Courts call an anticommandeering principle, which says the government can't force a state to criminalize something. It can make its own regulations, but they can't force the state to do the same. That's one of the reasons we haven't seen the federal government ever sue directly a medical marijuana state. It would be a long shot for them in court. They would be coming in and saying, Washington and Colorado, you have to continue to make marijuana illegal. And the law is clear that they can't force a state to make something illegal. CAVANAUGH: I'm speaking with Alex Kreit. Let's talk about the second policy announcement. Attorney general Eric holder's new guidelines regarding the use of mandatory minimum sentences in drug cases. What is the change in policy? KREIT: Well, this is I think potentially a really huge shift in the federal approach to drug cases generally. And this has been one of the most controversial aspects of federal drug policy, which is mandatory minimum sentencing. And the problem is this, are the mandatory minimum sentences, Congress passed them saying they were going to go after people based on their role, high-level involvement in drugs, etc. But instead of specifying a role in the punishment, they tie punishment to the type and quantity of drugs people have. And there are people who play very small roles who have a large quantity of drugs. Here at the border, people who are typically drug addicts or poor family people who get recruited, looking to get money, desperate for money. People may have medical problems or that sort of thing. They really have no ties to the drug organization, but they're hard up for money. And if you're really poor and offered two thousand dollars to drive a car across the border, it can be a temptation. And by tying mandatory minimum sentences to these people, some people are facing 20 years in prison. I think that's one of the most commonly criticized parts of the drug policy. CAVANAUGH: Just to be clear, when we're talking about a mandatory minimum, it means if someone is convicted of a crime, the judge has no discretion in sentencing. The person has to be absolutely sentenced to a certain amount of time as a minimum sentence. No matter what his backstory. KREIT: Exactly right. They can't factor in anything about the individual's role or background or whether this person really was truly significantly involved in the drug trade. And I think that's been one of the saddest things. It was pretty clear if you look at what the Senator said on the record when we passed this law, they wanted it to apply to higher level drug traffickers, thinking if you've got a lot of drugs, that means you're a really high-level person. But the reality is that there's plenty of very, very minor people who get involved with large quantities simply because their role, they're a courier, or even day labors unloading drugs from a car. Or these stories about the girlfriend of a drug traffic who gets a long mandatory minimum sentence, she may have played very little role, taking a phone message for her boyfriend or something like that. But tax simply the quantity involved, there might be a mandatory minimum sentence. That's what is meant by these mandatory minimums. CAVANAUGH: I asked Laura Duffy if she agreed with this change that was announced last week. She said yes, and she gave her reasons why. ROBERTS: This policy, I'm going to call it refinement at the department, is system fairness review. Whether what we're doing, what we have been doing is effective, and whether what we're doing is economically sustainable. CAVANAUGH: Would you agree with those reasons? KREIT: Yeah, I think those are part of what is going on. If you look at attorney general holder's speech that he gave, I think there's more than just efficiency. I think those are considerations. But he also seemed concerned with the fundamental fairness of the application of these laws which have had really significant impacts on a lot of people that are very low-level, minor players who get wrapped up in these roles with large quantities. So what this memo does, it directs U.S. attorneys and prosecutors, and be it has more teeth than the marijuana directive as far as discretion that says, look, if people meet certain criteria, are then we're not going to charge the mandatory minimum sentence. They're still going to be prosecuted federally. And under the sentencing guidelines, they'll still face some significant punishment, a lot more than they would have in the early '80s, and more than a lot of people still think is warranted. But they're going to leave the sentence in the judge's discretion to determine what role this person has, what background they had, and not tie their hands with the mandatory minimum. CAVANAUGH: Now, there have been some people who have looked at this change and the fact that the government will not sue the states who have legalized marijuana has indicating a change or shift in the U.S. war on drugs and drug enforcement policy. KREIT: I think so. If you look at what the current drug czar, outgoing drug czar, he said when he came into office, he said I think it's time to end this talk of a war on drugs. And that was just a rhetorically shift for the most part in the first couple years in office. He said a couple times though he thinks it's time to end that idea of a war. And I think these policies, particularly the mandatory minimum sentencing policy, which I think really will have some teeth to it, I think is a really firm policy, pronouncement consistent with this idea of moving away from the war on drugs. If you look at polling, 80% of the public says they think the war on drugs has failed. You look at the statistics, anybody who is familiar with drug use in high school or anything like that, we know that despite our efforts, nothing much has changed in the last few decades. CAVANAUGH: Before mayor Filner resigned, getting legal status for San Diego's medical marijuana dispensary was one of his big issues. Where do plans for new ordinances stand now? KREIT: Like many things city politics, it's up in the air with Filner's resignation, and all the stuff going on as far as the political jockeying of who's going to run for mayor. It's hard to say where really any local issue is going to fall. But I am still hopeful the City Council will take a look at this and get regulations in place. The reality is the City Council for a long time has been pretty much in agreement. All the council members, on the principle of having strong regulations. It's just a matter of getting them in place. I'm hoping the City Council will look and say, hey, this memo says the U.S. attorneys are supposed to look at the types of regulations in place, and see how strong they are. We don't have any regulations in place. Without them, we're leaving San Diegans in a difficult position. Hopefully this memo will lead the City Council to take a look and say let's pass something, and maybe even reach out to Laura Duffy and say let's have that conversation and see what you would be comfortable with.