Ted Simons: The U.S. Justice Department announced last week that it will not file suit against states that allow for recreational marijuana use. Here to talk more about the Justice Department's new marijuana enforcement guidelines is Phoenix criminal defense attorney Bruce Feder. Good to have you here. Thanks for joining us.
Bruce Feder: Thank you for having me.
Ted Simons: What exactly did the Justice Department do?
Bruce Feder: This is the second policy that the Department of Justice has issued in the last several years. It appears to be a progression where recognizing that the states are engaged in the historically accepted experimental aspect that they are to look at societal problems and see if they can come across with a better way. The Justice Department now says that they are going to not prosecute not only small users and sick people who need marijuana for their illnesses, but even for larger producers, so long as the states have comprehensive rules and regulations that they enforce. So it's pretty much the federal government saying, we're going to have a hands-off policy and let the states do what they need to do.
Ted Simons: Is that a hard approval or a tacit approval?
Bruce Feder: Far be it for me to look into their mind and know what it is they're thinking. The stated reason is it's to present their resources on other problems, that this is not one that they need to spend money and time on.
Ted Simons: Indeed it sounds like they're telling the states, you can do X, Y, and Z, just don't undermine our priorities and our guidelines when it comes to distribution to minors, to gangs, and these sorts of things. Is that somewhat accurate?
Bruce Feder: They gave, I think, seven or eight categories where they don't want the states to allow people, such as selling to minors or the money is going to criminal enterprises. They've kept back their ability to prosecute people using federal lands, to either use marijuana or cultivate marijuana.
Ted Simons: So the state regulations have to be in place and have to be of such a strength where the feds say, keep them strong, keep them in place-- What if you got a state that does haven't much in the way of regulations?
Bruce Feder: It's always the devil is in the details. This memo is not clear as to what criteria they're going to use as to whether or not a state has comprehensive regulations and whether or not a state is enforcing those regulations in a manner in which the DOJ thinks is appropriate.
Ted Simons: Is this something somewhat similar to immigration, the guidelines of immigration enforcement we saw coming out of justice?
Bruce Feder: Same conceptual framework, I think, and that is drug enforcement is part of the federal government's regulatory authority. They put drugs on the controlled substance act. I don't know if it's exactly the same because the states have sort of concurrent jurisdiction over whether or not they want to prosecute or make illegal certain types of drugs.
Ted Simons: I asked the question because it sounds like the feds are almost saying, you don't need to necessarily enforce federal law here, or federal law doesn't necessarily have to be recognized as it stands, here's our guidelines for it.
Bruce Feder: Well, they're saying it's still illegal under federal law, it's still illegal on federal lands, but again, they're going to allow this historically approved experimental laboratory in the state for them to see if maybe we should move away from the war on drugs, and allow sick people, addicted people and other people to use marijuana and not put so many people in prison, not give so many people criminal histories.
Ted Simons: What does it mean to Arizona's medical marijuana law?
Bruce Feder: I think it gives authority for them to openly engage in the program and see how it works. I think it takes certainly away any concerns that the governor expressed about state officials that were involved in implementing this program being prosecuted.
Ted Simons: Indeed. Still against the law, but not open to prosecution, or not a target of prosecution.
Bruce Feder: So this policy statement says. There have been some prosecutions of dispensaries in California, for instance, since the first policy statement was issued. So --
Ted Simons: What about the county's lawsuit against this one dispensary in Sun City, which again, the county attorney is saying, you're asking for county officials to -- in a public capacity, to break the law. I think that's in appeals right now. But your thoughts on just, first of all, the argument, and secondly, does this set of guidelines now change that equation?
Bruce Feder: I don't know that it changes it. This is kind of everybody sort of feeling their way along this. You have a law on the books that says marijuana is illegal, it's what's called a schedule one drug under the Controlled Substances Act along with heroin, cocaine, etc. And yet the federal government is taking a step back, and letting states see if there would maybe a better way to deal with marijuana as opposed to making it illegal, but just to make it some type of medication.
Ted Simons: This idea of the Justice Department with guidelines regarding federal laws, some of those guidelines including don't enforce those federal laws, is this unprecedented, is it unusual? Have we seen this a lot in the past?
Bruce Feder: Don't ask, don't tell, I suppose is one possibility. I'm not sure I can think of another off the top of my head. I think, again, the federal government has to enforce the law. But sometimes when they see a problem that maybe they feel that the law shouldn't be enforced as harshly as it might be, that they can take a step back and let the states see if they can come up with a better way of dealing with things.
Ted Simons: We've seen criticism already of this, that the Attorney General's breaking the law, shirking his duties I think was some of the things out there. Your thoughts again on that? I know you've kind of encapsulated it, but the idea of the actual chief law enforcement officer saying this and putting these guidelines, is there a shirking of duties going on here?
Bruce Feder: Congress would have -- Well, initially the Drug Enforcement Administration would have to try to deschedule marijuana from Schedule One and either take it off, or put it in another schedule where it could be prescribed as a medication. That would -- And the Drug Enforcement Administration is part of the executive branch. So the executive branch I think is sending a message that ultimately Congress would have to answer is whether or not at this point in our history we have maybe made a mistake about marijuana and we need to move in a different direction. So I don't think he's shirking his responsibility, I think he is accepting his responsibility in times of budgetary distress, is to put our resources toward other more pressing problems.
Ted Simons: Is this the kind of thing where folks who have been convicted of crimes involving marijuana possession, marijuana use, does that change the dynamic as far as their sentencing, as far as their cases are concerned? What goes on there?
Bruce Feder: Unclear, unknown, to be continued.
Ted Simons: So there is a possibility -- We've all heard the stories of someone who is in possession and the third strike, whatever the case may be, getting decades in prison for possession of either marijuana or something else. Forget the something else, let’s stick with marijuana. This could change that dynamic, couldn't it?
Bruce Feder: Well, it will definitely change it going forward.
Ted Simons: Yes.
Bruce Feder: The question is, is it ever going to change the circumstances of those people who have already been convicted of marijuana offenses? And that is an unknown.
Ted Simons: Last question. Criminal defense attorney, you represent someone who's been busted for possession of marijuana. I don't know how often that happens anymore, but -- not in Colorado, not in Washington, here in Arizona. How do you approach a defense? And does this guideline change things?
Bruce Feder: In Arizona, for first-time offenders and even second-time offenders, they're given an opportunity to enter into a diversion program where they attend classes and perform other tasks in something called TASC, T-A-S-C, where if they successfully complete the charges are dropped. So in this particular circumstance, Arizona was way ahead of the curve.
Ted Simons: Interesting stuff. It's good to have you here. Thanks for joining us.
Bruce Feder: Thank you. Take care.