GAO Recommends Better Monitoring of Federal Marijuana Enforcement Priorities; DOJ and DEA Officials Report on Marijuana Enforcement

By John A. Gilbert, Jr. & Larry K. Houck –

The Government Accountability Office (“GAO”) recently released a report examining issues related to state marijuana legislation and federal monitoring of such actions. GAO, State Marijuana Legalization: DOJ Should Document Its Approach to Monitoring the Effects of Legalization, GAO-16-1 (Dec. 2015). The report evaluates the extent to which the U.S. Department of Justice (“DOJ”) is monitoring the effects of state marijuana legalization in relation to DOJ policy as promised in the marijuana enforcement guidance memorandum from Deputy Attorney General James M. Cole in August 2013 (“Cole Memo”). The report also reviews the controls that Colorado and Washington have enacted to regulate recreational marijuana and the factors affecting Drug Enforcement Administration (“DEA”) field officials’ enforcement actions in states that have legalized marijuana for medical purposes.

In summary, GAO found that federal officials reported monitoring these state initiatives through prosecution of cases threatening federal enforcement priorities, consulting with state officials about federal concerns and collaboration among DOJ components (that is, DEA, ONDCP, etc.) in sharing data on marijuana enforcement areas. However, GAO found that DOJ did not document this monitoring process and recommends that DOJ conduct such monitoring to ensure that its efforts are addressing the intended goals and to better assist DOJ in identify state systems that are not adequately protecting federal enforcement priorities and take appropriate action.

The report provides background on marijuana in general and summarizes marijuana’s current status under federal and state law. The report also identifies the federal enforcement priorities articulated in the Cole Memo and provides a chronology of state action related to actions to legalize medical marijuana and recreational use. See our blog dated November 11, 2015. GAO notes that while 24 states and the District of Columbia have legalized marijuana and 15 states have legalized cannabidiol, an active ingredient in marijuana plants, for medical purposes, and 4 states and the District of Columbia have legalized marijuana for recreational use, marijuana remains a schedule I controlled substance under the federal Controlled Substances Act (“CSA”).

1. The GAO report provides a detailed description of the Colorado and Washington regulation of recreational marijuana but does not opine on the impact or effectiveness of these regulatory systems.  

GAO reviewed the laws and regulations governing recreational marijuana in Colorado and Washington to determine how those states regulate its production, processing and sale and interviewed state regulatory officials. GAO found the Colorado and Washington recreational marijuana regulatory schemes to be quite similar. Both states require licenses for marijuana production, processing, selling and testing. Both require applicant background checks of state residency, age and criminal history to determine licensing eligibility. Both states require recreational marijuana facilities to have specific physical security measures in place to prevent theft and diversion and that licensees implement inventory systems that allow state officials to track specific plants and products through the supply chain. Licensees must submit marijuana and marijuana-infused product samples to state-approved labs for testing. The states have established labeling and packaging standards. Colorado and Washington regulations set restrictions on consumer use of recreational marijuana, limiting who can possess, how much they can possess and where they can use it. The states require licensees to grant access to regulatory authorities to inspect facilities. Regulatory violations in both states can lead to progressive discipline with escalating penalties that could include monetary fines, suspension or cancellation of a license, and criminal charges.

Despite providing a detailed summary of these regulatory requirements, GAO did not opine on the effectiveness of the Colorado and Washington recreational marijuana regulatory systems.

2. GAO finds that DOJ has not documented monitoring of state marijuana legalization as outlined in the Cole Memo.

The Cole Memo set forth DOJ’s expectation that state and local governments implement strong and effective regulatory and enforcement systems to ensure that the laws and regulations do not undermine the eight federal enforcement priorities. The memo asserted that “[i]f state enforcement efforts are not sufficiently robust to protect” threats to the federal enforcement priorities, “the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions.” Memorandum from James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013). In determining how DOJ monitors the effects of state marijuana legalization laws relative to its marijuana enforcement policy, GAO reviewed DOJ documentation related to enforcement and monitoring efforts, and interviewed DOJ and other responsible federal officials.

GAO found that DOJ monitors the effects of state marijuana legalization related to DOJ’s enforcement policy in two ways. First, DOJ continues to enforce the CSA by taking action against marijuana activity that threatens the eight federal enforcement priorities, and U.S. Attorneys in those states monitor whether the cases implicate the enforcement priorities and prosecute cases that do. Second, Office of the Deputy Attorney General (“ODAG”) officials reported that DOJ uses various sources of information to monitor the effects of marijuana legalization under state law, noting that “DOJ’s focus was on monitoring the effects that legalization has had relative to DOJ’s enforcement priorities, rather than evaluating specific requirements within states’ legalization laws or regulatory systems.” The report notes that ODAG officials did not state how they make use of information from various qualitative and quantitative sources including federal surveys on drug use, state and local research, and feedback from federal, state and local law enforcement, to monitor the effects of state marijuana legalization or how DOJ uses information to determine whether federal action is necessary to challenge a state’s regulatory system. ODAG officials reported that it had not documented their monitoring process and that they do not see a benefit in documenting how it would monitor the effects of state marijuana legalization on the Cole Memo guidance.

GAO concluded that “[d]ocumenting a plan specifying its monitoring process would provide DOJ with greater assurance that control activities – such as the ways DOJ is monitoring the effect of state marijuana legalization relative to federal enforcement priorities – are occurring as intended.” ODAG could gain institutional knowledge with respect to its monitoring plan by sharing it with officials from DOJ components who provide the data that the DOJ uses to monitor state legalization. GAO concludes that incorporating feedback from officials into its monitoring plan could assist ODAG to ensure that it is using the most appropriate data and better identify the state systems that do not effectively protect the federal enforcement priorities. 

3. DOJ’s marijuana enforcement priorities have affected DOJ and DEA marijuana enforcement efforts in states that have legalized medical marijuana.

GAO interviewed DEA and U.S. Attorney Office (“USAO”) officials in Colorado, Washington, Alaska, California, Maine and Oregon to determine the factors affecting their enforcement actions in states that have legalized marijuana for medical purposes. GAO also reviewed information in those states regarding enforcement actions, including letters sent to medical marijuana dispensaries and public case information from fiscal year 2007 through 2014, two years before DOJ’s first marijuana enforcement guidance and after the August 2013 guidance.

DEA and USAO officials reported that they continue to apply their limited resources to address the most significant threats within their jurisdictions. They sent warning letters to 1,900 owners and lien holders of medical marijuana dispensaries during fiscal years 2007 through 2013 in response to concerns about the growth of the medical marijuana industry. Officials in California, Oregon and Washington also reported conducting criminal investigations and prosecutions or civil suits with the letter campaigns. Some officials reviewed their open marijuana cases and closed cases that did not threaten the federal priorities. Moreover, a number of officials report that they now decline to consider some marijuana-growing cases for investigation and prosecution because they do not threaten the federal priorities. Officials in California, Colorado, Oregon and Washington that had sent warning letters to medical marijuana dispensaries have not sent warning letters since the Cole Memo because in part the guidance requires that they consider not the size or commercial nature of a dispensary alone, but rather whether it is implicating the enforcement priorities.

Recommendations

The GAO report recommends the Attorney General to direct ODAG to document a plan specifying DOJ’s process for monitoring the effects of marijuana legalization under state law in accordance with the Cole Memo, that identify the various data ODAG will use and its limitations, and how ODAG will use the information sources to determine whether state systems are effectively protecting the federal priorities. GAO also recommends that the Attorney General direct ODAG to use existing mechanisms to share DOJ’s monitoring plan with DOJ component officials responsible for providing information to DOJ about the effects of state legalization to ODAG, obtain their feedback and incorporate the feedback into its plan.

DOJ received a draft of the GAO report and concurred on November 13, 2015 with both recommendations. DOJ indicated that that ODAG will document a plan to identify the various data sources that assist DOJ and USAOs in making enforcement decisions that include individual criminal prosecution or civil enforcement in marijuana crimes. DOJ stated it will monitor this data and other sources of information to determine if states are protecting the federal enforcement priorities.