One Quote Shows Why the Next Attorney General Could Be a Disaster for Legal Marijuana


Loretta Lynch, the U.S. Attorney for the Eastern District of New York, is poised to become the nation's first black woman U.S. Attorney General and head of the Department of Justice. On issues ranging from executive action to civil asset forfeiture, she has proven herself eager in both word and deed to carry on outgoing Attorney General Eric Holder's legacy as a stalwart defender of an illiberal status quo.

And her position on marijuana legalization should especially be a cause for concern among libertarian-minded young people.

During her Senate confirmation hearings last week, Lynch came out firmly against marijuana legalization: 

"I can tell you that not only do I not support the legalization of marijuana, it is not the position of the Department of Justice currently to support the legalization. Nor would it be the position should I become confirmed as attorney general."

Lynch also argued, contrary to abundant and readily available evidence, that marijuana is just as dangerous as alcohol. Specifically addressing President Barack Obama's statement that he believed that alcohol is more dangerous than marijuana in an interview last year with the New Yorker, Lynch said: "I certainly don't hold that view and don't agree with that view of marijuana. I certainly think the president was speaking from his personal experience, personal opinion, neither of which I am able to share."

What, then, are the prospects for legal marijuana should an avowed prohibitionist with an apparently contemptuous view of factual evidence take over the DOJ? That's the billion-dollar question.

The devil is in the details: When pressed about the DOJ's authority to pre-empt state law, Lynch hemmed and hawed. She suggested she would respect the decision of voters in states with legal pot, but then went on to say the DOJ has the prerogative to enforce other laws. Per Lynch, under the current federal regime prosecutors are required "to seek prosecution of marijuana cases particularly where we have situations where children are at risk, where marijuana is crossing state lines, particularly where you have marijuana being trafficked from a state that has chosen a legal framework into a state that has not ... as well as those who are driving under the influence of this."

Ominously, these sorts of nebulous caveats usually translate to irrationally aggressive drugged-driving policies or to making it particularly difficult for legitimate pot business to use banks and keep their profits – to say nothing of that timeless excuse favored by proponents of the War on Drugs: protecting the children.

But according to U.S. News & World Report, pot reformers seem generally unworried about Lynch's muted saber-rattling. "We don't need federal officials to personally support legalization," said Tom Angell, chairman of Marijuana Majority. "We only need them to respect the will of voters who have implemented legalization in their own states."

Angell was undoubtedly referring to the memorandum sent to U.S. attorneys across the country by Holder's DOJ, which curbed federal prosecution of people in compliance with state marijuana laws. What has become known as the "Cole memo" was taken as a sign of good faith on the part of the federal government to stay out of state marijuana. And though raids have continued, probably in part to the large leeway Holder's memo gave prosecutors, it signaled a shift in attitude, if not a definitive shift in policy.

Reversible progress: But a memo and vague promises to "respect the will of voters" are precarious legal protections for people growing, selling and consuming pot. Legalization supporters, pot-shop entrepreneurs and casual marijuana consumers should perhaps feel justified about being just a bit paranoid.

After all, it wasn't so long ago that the Department of Justice was prosecuting an average of 36 legal medical marijuana cases per year, all under the aegis of Obama breaking his promise to do anything but. This after Holder promised not to go after medical marijuana dispensaries. Foreshadowing Lynch's testimony, Holder defended his actions by saying he was only addressing "abuses" of the system. Like going after Aaron Sandusky, a California medical marijuana dispensary employee sentenced to 10 years in prison for working in a legal business.

The Cole memo is not set in stone, nor should any great trust be placed in non-binding political promises. Lynch could conceivably reverse the DOJ's policy and return to the halcyon days of an all-out drug warfare on a whim. And given her rather tepid responses at the Senate hearings, we would do well not to underestimate a drug warrior's persistent faith in a discredited, ruinous and morally suspect crusade against things they don't like.