[Senate Hearing 113-588]
[From the U.S. Government Publishing Office]
S. Hrg. 113-588
CONFLICTS BETWEEN STATE AND FEDERAL MARIJUANA LAWS
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, SEPTEMBER 10, 2013
__________
Serial No. J-113-28
__________
Printed for the use of the Committee on the Judiciary
______
U.S. GOVERNMENT PUBLISHING OFFICE
93-426 PDF WASHINGTON : 2015
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Kristine Lucius, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 37
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 3
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 4
prepared statement........................................... 32
WITNESSES
Witness List..................................................... 31
Cole, Hon. James, Deputy Attorney General, U.S. Department of
Justice, Washington, DC........................................ 6
prepared statement........................................... 39
Urquhart, Hon. John, Sheriff, King County Sheriff's Office,
Seattle, Washington............................................ 18
prepared statement........................................... 44
Finlaw, Jack, Chief Legal Counsel, Office of Governor John W.
Hickenlooper, Denver, Colorado................................. 20
prepared statement........................................... 46
Sabet, Kevin A., Ph.D., Director, University of Florida Drug
Policy Institute, Department of Psychiatry, Division of
Addiction Medicine; and Director, Project SAM (Smart Approaches
to Marijuana), Cambridge, Massachusetts........................ 21
prepared statement........................................... 55
QUESTIONS
Questions submitted by Senator Dianne Feinstein for James M. Cole 66
Questions submitted by Senator Charles Grassley for James M. Cole 72
Questions submitted by Senator Patrick Leahy for James M. Cole... 73
Questions submitted by Senator Al Franken for James M. Cole...... 75
Questions submitted by Senator Charles Grassley for John Urquhart 76
Questions submitted by Senator Charles Grassley for Jack Finlaw.. 77
Questions submitted by Senator Charles Grassley for Kevin Sabet.. 78
ANSWERS
Responses of James M. Cole to questions submitted by Senators
Leahy, Grassley, and Feinstein................................. 79
Responses of John Urquhart to questions submitted by Senator
Franken........................................................ 106
Responses of John Urquhart to questions submitted by Senator
Grassley....................................................... 108
Responses of Jack Finlaw to questions submitted by Senator
Grassley....................................................... 110
Responses of Kevin Sabet to questions submitted by Senator
Grassley....................................................... 112
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Letter to Attorney General Eric Holder from Steven F. Lukan,
Director, Iowa Governor's Office of Drug Control Policy........ 114
Letter to Attorney General Eric Holder from National Law
Enforcement Organizations in Hennepin County, Minnesota; Hughes
County, South Dakota; Association of State Criminal
Investigative Agencies; International Association of Chiefs of
Police; Police Executive Research Forum; and National Narcotic
Associations' Coalition........................................ 116
Letter to Attorney General Eric Holder from the Former
Administrators of the Drug Enforcement Administration (1973-
2007).......................................................... 119
Letter to Senator Leahy from Dennis J. Gallagher, City Auditor,
Denver, Colorado............................................... 121
Americans for Safe Access, ``Three Areas of Inquiry for
`Conflicts Between State and Federal Marijuana Laws' ''........ 123
Tamar Todd, Senior Staff Attorney, Drug Policy Alliance, Office
of Legal Affairs, statement.................................... 133
Governor Jay Inslee and Attorney General Bob Ferguson, Washington
State, statement............................................... 141
Letter to Senator Leahy from Mark A.R. Kleiman, Professor of
Public Policy, UCLA Luskin School of Public Affairs, Los
Angeles, California............................................ 145
Letter to Senator Leahy from Hon. Dana Rohrabacher, 49th
District, California........................................... 151
Letter to Senator Leahy from We Can Do Better Coalition: Sue
Rusche, National Families in Action; A. Thomas McLellan,
Treatment Research Institute; Kevin Sabet, Project SAM (Smart
Approaches to Marijuana)....................................... 152
Hon. Ed Perlmutter, 7th District, Colorado, statement............ 157
Letter to Treasury Secretary Lew, Chairman Bernanke, Chairman
Gruenberg, Comptroller Curry, Director Corday, and Chairman
Matz from Hon. Ed Perlmutter, 7th District, Colorado, and Hon.
Denny Heck, 10th District, Washington State.................... 159
Letter to Senator Leahy from Lori Augustyniak, Prevention Works!
VT............................................................. 161
CONFLICTS BETWEEN STATE AND FEDERAL MARIJUANA LAWS
TUESDAY, SEPTEMBER 10, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:45 p.m., in
Room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Whitehouse, Blumenthal, and
Grassley.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. I have mentioned to the witnesses the
reason for the delay. It was because I was talking to Senator
Grassley, who is going to be joining us shortly. He has been in
a very important meeting with the President on the situation in
Syria. The President met with the Senate Democrats earlier and
now he is meeting with the Senate Republicans. It is a gravely
serious matter, as I am sure all of you know, and I mentioned
this to Deputy Attorney General Cole earlier also.
Today's hearing also deals with a serious issue, and I
trust that members of the public here will act accordingly. I
want to note at the outset that the rules of the Senate
prohibit outbursts, clapping, or demonstrations of any kind
either for or against any position I might take or anybody else
might take. That includes blocking the view of people around
you.
I am glad to have this hearing room where we can
accommodate as many as we possibly can, and we have overflow
rooms with a television. But please be mindful of the rules
when we conduct these hearings, and, of course, the Capitol
Police will be authorized to remove anyone who does not follow
these rules.
Now, last November, the people of Colorado and Washington
voted to legalize the possession and use of small amounts of
marijuana and to regulate how marijuana is produced and
distributed in their States. These new laws are just the latest
examples of the growing tension between federal and State
marijuana laws, and they underscore the persistent uncertainty
about how such conflicts are going to be resolved.
Should the Federal Government arrest and prosecute
marijuana users in States where they might be in full
compliance with State law? Or should the Federal Government
take a completely hands-off approach and let drug laws and
policy develop on a State-by-State basis? Or is there some
middle-ground approach that considers both the national
interests and the fundamental principles of federalism,
including the rights of voters to decide what is best for their
own individual States? So the Committee is going to hold the
first congressional hearing on these issues since the new laws
passed in Colorado and Washington, and it presents an important
opportunity to hear from some of the people who are directly
involved in grappling with these complex questions.
Of course, much of the focus of today's hearing is going to
be on what is happening in Colorado and Washington, but the
questions and issues we have today are going to have
implications for the rest of the country. Marijuana use in this
country is nothing new, but the way in which individual States
deal with marijuana usage continues to evolve. Some States,
like my own State of Vermont, have decided to allow the use of
marijuana by patients with debilitating medical conditions. As
a result, Vermonters who suffer from diseases like multiple
sclerosis, cancer, and AIDS now are able to use medical
marijuana to at least treat the symptoms of their conditions.
In addition, some States, including Vermont, have simply
decriminalized marijuana, imposing civil fines on marijuana
users rather than criminal penalties.
To date, and as shown on this map, we have a total of 21
States that have legalized marijuana for medical purposes, and
16 of those States have decriminalized the possession of small
amounts of marijuana. But every one of these changes in State
marijuana laws has taken place against the same background: the
possession of any amount of marijuana is still a criminal
penalty under federal law.
Now, the question I have is: What role should the Federal
Government play in those States where marijuana use is legal? I
think it is important for us to identify the areas in which
there is broad agreement and common ground. For example, the
Federal Government and those States that have legalized
marijuana in some way all agree on the necessity of preventing
the distribution of marijuana to minors. Likewise, there is
agreement about the need to prevent criminal enterprises from
profiting from marijuana sales, the goal of reducing violent
crime, and the dangers associated with drugged driving. These
are important safety concerns, and I appreciate everybody who
is acting to address them, in federal, State, and local law
enforcement.
Now, I hope, though that there might be agreement on the
fact that we cannot be satisfied with the status quo. We know
the black market for illegal marijuana in this country
endangers public safety. The black market continues to
contribute to violence along the southwest border. It continues
to thrive despite the billions of dollars that have already
been spent on enforcement efforts at the federal, State, and
local levels. It is also clear that the absolute
criminalization of personal marijuana use has contributed to
our Nation's soaring prison population and has
disproportionately affected people of color. And in this
context, it is no surprise that States are considering new,
calibrated solutions that reach beyond the traditional laws.
Anybody, including two of us right here, who has been a
prosecutor knows that you cannot begin to prosecute all the
laws that are on the books. You do not have the resources. The
question is: What resources should we use and where?
I asked the administration last December for its responses
to the measures, especially in Colorado and Washington. It took
some time, but I am encouraged by the policy guidance that the
Deputy Attorney General recently provided to federal
prosecutors. Federal agents and prosecutors have scarce
investigative resources. I really do not think they should be
devoting them to pursuing low-level users of marijuana who are
complying with the laws of their States. As the President said
last year, there are bigger fish to fry. And I am glad that the
Justice Department plans to commit its limited resources to
addressing more significant threats.
I appreciate that Deputy Attorney General Cole, who is no
stranger to this Committee, is here to answer questions. But I
also look forward to hearing from the witnesses from Colorado
and Washington. They see these issues not in the abstract but
day by day in their State. I want them to explain the decisions
in their States and the implementation of those decisions.
I hope today's hearing will also shine a light on how a
series of federal laws poses significant obstacles to effective
State implementation and regulation of marijuana, including
existing federal laws and regulations in areas such as banking
and taxation. We have to have a smarter approach to marijuana
policy, and that can only be achieved through close cooperation
and mutual respect between the Federal Government and the
States.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Whitehouse, did you wish to----
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Let me thank the Chairman for holding
this important hearing. We have States, as the Chairman's map
of the country's quilt of different approaches demonstrated,
that have taken very different ways of dealing with marijuana
use, particularly for minor, very small amount individual
users, and for those for whom it is adjudged to be medically
necessary. Rhode Island permits medical marijuana and recently
decriminalized the possession of small amounts of marijuana.
Our Governor, Governor Chafee, has asked the Drug Enforcement
Administration to declassify marijuana as a Schedule II
substance, which would allow it to be prescribed.
It strikes me that the areas in which the States are
loosening up restrictions on the use of marijuana are virtually
entirely also areas in which the need for federal prosecution,
and the rationale for the use of scarce law enforcement and
prosecutive resources is extremely low. So there does not seem
to be an underlying need for conflict between federal
prosecution policies and State marijuana policies, and yet I
believe that in the past, largely due to uncertain and often
inconsistent policies from the Department of Justice, there has
been created an artificial conflict. And I think the new memo
helps clarify that, and I look forward to this hearing helping
to clarify it further. And I thank the Deputy Attorney General,
whom I respect very much, for coming here to discuss this issue
with us, and I thank the Chairman for holding this important
hearing.
Chairman Leahy. Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Grassley. Mr. Chairman, I would like to give my
opening statement.
Chairman Leahy. Certainly. Go ahead.
Senator Grassley. Thank you. Of course, I thank you very
much for holding today's hearing about the conflict between
federal and State laws. Since Congress passed the Controlled
Substance Act, the cultivation, trafficking, sale, and use of
marijuana have been illegal under federal law. Marijuana's
continued presence on the statute's list of illegal substances
is not based on whim. It is based on what science tells us
about this dangerous and addictive drug. There is a process
that exists to move drugs on and off that list, but the
scientific standard to do that has not yet been met for
marijuana.
Marijuana is not only illegal under laws passed by
Congress, it is illegal under international law as well. The
United States and 180 nations have signed the Single Convention
on Narcotic Drugs. This treaty requires the United States to
limit the distribution and use of certain drugs, including
marijuana, for exclusively scientific and medical use. It is
something this country gave its word to do, and it is a
commitment that our country and many others have benefited from
through improved public health.
Yet in 2012, Colorado and Washington decided to be the
first jurisdiction in the world to legalize the cultivation,
trafficking, sale, and recreational use of marijuana. These
laws flatly contradict our federal law. Moreover, these laws
have nothing to do with the controversy about whether marijuana
has an appropriate medical use. Some experts fear they will
create a big marijuana industry, including a Starbucks of
marijuana that will damage public health, and it seems unlikely
that we will be able to confine that industry's effect to
adults and those within the States of Colorado and Washington.
And the response of the Department of Justice is not to sue to
strike down the laws or to prosecute illegal drug traffickers,
but just to let these States do it.
These policies do not seem to be compatible with the
responsibility our Justice Department has to faithfully
discharge their duties, and they may be a violation of our
treaty obligations.
Prosecutorial discretion is one thing, but giving the green
light to an entire industry predicated on breaking federal law
is quite another. These policies are another example of this
administration ignoring laws that it views as inconvenient or
that it does not like. Whether it is immigration laws or Obama
deadlines, the list is long, and it hardly needs repeating.
But what is really striking in this case is that the
Department of Justice is so quick to challenge State laws when
it does not like or want to enforce them. States that change
their voting laws to require an ID, well, we will see you in
court. States that try to secure their borders when the Federal
Government will not, expect a lawsuit. But if some folks want
to start an industry dedicated to breaking federal law, well,
then the Department's position is to wait and see how it works
out.
But we already have a pretty good idea how it works out,
and the answer is: Badly.
Take Colorado as an example. Since it has legalized and
attempted to regulate medical marijuana, what have we seen?
From 2006 to 2011, a 114-percent increase in driving fatalities
involving drivers testing positive for marijuana. Comparing
2007 through 2009 with 2010 through 2012, a 37-percent increase
in drug-related suspensions and expulsions from Colorado
schools, a sharp increase in marijuana exposure to young
children, many resulting in trips to poison control centers or
hospitals; and in the words of Colorado's Attorney General, the
State is becoming ``a significant exporter of marijuana to the
rest of the country.''
The statistics on this point are shocking, but not
surprising, given simple economics. From 2005 to 2012, there
was a 407-percent increase in Colorado marijuana interdiction
and seizures that were destined for other States. In 2012
alone, there were interdictions in Colorado bound for 37
different States. One of those States was my home State of
Iowa. In 2010, Colorado was the source State for 10 percent of
all marijuana interdictions in Iowa. That number grew to 25
percent in 2011 and to 36 percent in 2012.
Now, this was all before full legalization in Colorado.
What do you think this number will be next year? Is the Federal
Government prepared to pay for law enforcement costs it is
imposing on States like Iowa because it refuses to enforce
federal law? In 2012, the proportion of Iowa juveniles entering
substance treatment primarily due to marijuana reached its
highest point in 20 years. How many more of Iowa's daughters
and sons will go into treatment next year because the
Department will not enforce federal law? There is no amount of
money that can make Iowa whole for that.
I have a letter from the Director of the Iowa Office of
Drug Control Policy to the Attorney General that lays out some
of these statistics. The Director requested that the Department
consider this decision, and I ask that that be included in the
record.
Chairman Leahy. Without objection.
[The letter follows appears as a submission for the
record.]
Senator Grassley. Of course, the Department would have
known many of these things had it consulted with the folks on
the ground before making those decisions. These are people who
see the effects of marijuana addiction and abuse every day.
I also have here a letter to the Attorney General from many
of the major State and local law enforcement organizations in
the United States and likewise ask to put that in the record.
Chairman Leahy. Without objection.
[The letter follows appears as a submission for the
record.]
Senator Grassley. I understand representatives of many of
these organizations had asked to be consulted in advance of the
Department's decision, and they were told that they would be.
However, they wrote, ``It is unacceptable that the Department
of Justice did not consult our organizations whose members will
be directly impacted for meaningful input ahead of this
important decision. Our organizations were given notice just 30
minutes before the official announcement was made public and
were not given the adequate forum ahead of time to express our
concerns with the Department's conclusion on this matter.
Simply checking the box by alerting law enforcement officials
right before a decision is announced is not enough and
certainly does not show an understanding of the value of the
Federal, State, local, and tribal law enforcement partnerships
bring to the Department of Justice and to public safety.''
I will put the rest of my statement in the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
Our first witness is James Cole, as I said, the Deputy
Attorney General of the Department of Justice. In that
capacity, he helped the Department update marijuana enforcement
policies following the recent State-level developments that I
discussed earlier. He first joined the Department of Justice in
1979 and served for 13 years in the Criminal Division, later
becoming the Deputy Chief of the Division's Public Integrity
Section before entering private practice.
Mr. Cole, it is always good to have you here. Please go
ahead, sir.
STATEMENT OF HON. JAMES COLE, DEPUTY ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Cole. Thank you, Chairman Leahy, Ranking Member
Grassley, Senator Whitehouse. I am pleased to speak with you
about the guidance that the Department recently issued to all
United States Attorneys regarding marijuana enforcement
efforts. That guidance instructs our prosecutors to continue to
enforce federal priorities, such as preventing sales of
marijuana by criminal enterprises, preventing violence and the
use of firearms in the cultivation and distribution of
marijuana, preventing distribution to minors, and preventing
the cultivation of marijuana on public lands--priorities that
we historically have focused on for many years--and it also
notes that we will continue to rely on State and local
authorities to effectively enforce their own drug laws as we
work together to protect our communities.
As you know, the relevant federal statute, the Controlled
Substances Act of 1970, among other prohibitions, makes it a
federal crime to possess, grow, or distribute marijuana, and to
open, rent, or maintain a place of business for any of these
purposes.
For many years, all 50 States have enacted uniform drug
control laws or similar provisions that mirrored the CSA with
respect to their treatment of marijuana and made the
possession, cultivation, and distribution of marijuana a State
criminal offense. With such overlapping statutory authorities,
the Federal Government and the States traditionally worked as
partners in the field of drug enforcement. Federal law
enforcement historically has targeted sophisticated drug
traffickers and organizations, while State and local
authorities generally have focused their enforcement efforts,
under their State laws, on more localized and lower-level drug
activity.
Starting with California in 1996, several States authorized
the cultivation, distribution, possession, and use of marijuana
for medical purposes under State law. Today, 21 States and the
District of Columbia legalize marijuana for medical purposes
under State law, including six States that enacted medical
marijuana legislation this year.
Throughout this time period, the Department of Justice has
continued to work with its State and local partners, but
focused its own efforts and resources on priorities that are
particularly important to the Federal Government. The
priorities that have guided our efforts are as follows:
Preventing the distribution of marijuana to minors;
Preventing revenue from the sale of marijuana from going to
criminal enterprises, gangs, and cartels;
Preventing the diversion of marijuana from States where it
is legal under State law in some form to other States;
Preventing State-authorized marijuana activity from being
used as a cover or pretext for the trafficking of other illegal
drugs or other illegal activity;
Preventing violence and the use of firearms in the
cultivation and distribution of marijuana;
Preventing drugged driving and the exacerbation of other
adverse public health consequences associated with marijuana
use;
Preventing the growing of marijuana on public lands and the
attendant public safety and environmental dangers posed by
marijuana production on public lands; and
Preventing marijuana possession or use on federal property.
Examples of our efforts have included cases against
individuals and organizations who were using the State laws as
a pretext to engage in large-scale trafficking of marijuana to
other States; enforcement against those who were operating
marijuana businesses near schools, parks, and playgrounds; and
enforcement against those who were wreaking environmental
damage by growing marijuana on our public lands. On the other
hand, the Department has not historically devoted our finite
resources to prosecuting individuals whose conduct is limited
to the possession of marijuana for personal use on private
property.
In November 2012, voters in Colorado and Washington State
passed ballot initiatives that legalized, under State law, the
possession of small amounts of marijuana and made Colorado and
Washington the first States to provide for the regulation of
marijuana production, processing, and sale for recreational
purposes. The Department of Justice has reviewed these ballot
initiatives in the context of our enforcement priorities.
On August 29, 2013, the Department notified the Governors
of Colorado and Washington that we were not at this time
seeking to preempt their States' ballot initiatives. We advised
the Governors that we expected their States to implement strong
and effective regulatory and enforcement systems to fully
protect against the public health and safety harms that are the
focus of our marijuana enforcement priorities, and that the
Department would continue to investigate and prosecute cases in
Washington and in Colorado in which the underlying conduct
implicated our federal interests. The Department reserved its
right to challenge the State laws at a later time in the event
any of the stated harms do materialize--either in spite of a
strict regulatory scheme, or because of the lack of one.
That same day, the Department issued a guidance memorandum
to all United States Attorneys directing our prosecutors to
continue to fully investigate and prosecute marijuana cases
that implicate any one of our eight federal enforcement
priorities. This memorandum applies to all of our prosecutors
in all 50 States and guides the exercise of prosecutorial
discretion against individuals and organizations who violate
any of our stated federal interests, no matter where they live
or what the laws in their States may permit. Outside of these
enforcement priorities, however, the Department will continue
to rely on State and local authorities to address marijuana
activity through the enforcement of their own drug laws. This
updated guidance is consistent with our efforts to maximize our
investigative and prosecutorial resources in this time of
budget challenges, and with the more general message the
Attorney General delivered last month to all federal
prosecutors, emphasizing the importance of quality priorities
for all cases we bring, with an eye toward promoting public
safety, deterrence, and fairness.
Our updated guidance also makes one overarching point
clear: the Department of Justice expects that States and local
governments that have enacted laws authorizing marijuana-
related conduct will implement effective regulatory and
enforcement systems to protect federal priorities and the
health and safety of every citizen. As the guidance explains, a
jurisdiction's regulatory scheme must be tough in practice, not
just on paper.
[The prepared statement of Mr. Cole appears as a submission
for the record.]
Chairman Leahy. Thank you. You know, I worry about the
extent to which we have some who do not take the position or
are unwilling to follow it and may create further problems. For
example, the banking industry is not willing to provide
services to State-authorized marijuana dispensaries. They fear
they may be violating federal money laundering laws. So then
the State authorized marijuana dispensaries and they started
operating as a cash-only business, with no access to bank
accounts or credit card transactions. That is a prescription
for problems, tax evasion and so on. And we are hearing that
the DEA agents, in what seems to me like a significant step
away from reality, are instructing armored car companies to
cease providing services to marijuana dispensaries, almost as
if they are saying, ``Get out of there so we can have some
robberies.''
Now, I am sure it is not stated that way, but I worry that
sometimes a bureaucracy trumps reality, as it has in this case
with the DEA.
So what is the Department going to do to address these
concerns? What sort of guidance are you giving to States about
these banking and tax issues?
Mr. Cole. Chairman Leahy, as far as the banking issue is
concerned, we agree it is an issue that we need to deal with.
When the Attorney General talked to the Governors of Washington
and Colorado, they raised the same issue, and others have
raised the same issue.
Obviously, there is a public safety concern when businesses
have a lot of cash sitting around. There is a tendency that
there are guns associated with that, so it is important to deal
with that kind of issue. And we are at the present time talking
with FinCEN, and they are talking with and bringing in bank
regulators to discuss ways that this could be dealt with in
accordance with the laws that we have on the books today.
Chairman Leahy. You may want to talk with DEA, too.
Mr. Cole. Well, as far as DEA is concerned, Mr. Chairman, I
certainly had heard about that. From what I understand, DEA was
merely asking questions of the armored car companies at the
time as to what their practices are. I think those questions
occurred before the guidance memo was put out, and certainly at
the present time I do not believe there is any effort to
instruct the armored car companies not to do anything at this
point.
Chairman Leahy. The implication is out there, and I would
hope that it will get cleared up because I do not want to see a
shoot-out somewhere and have innocent people or law enforcement
endangered by that. So I think there should be specific
guidance to the financial services industry and the Treasury
Department.
Now, you have noted that the Department generally does not
prosecute individuals for using small amounts of marijuana on
private property, which I think is sort of the general attitude
of most State prosecutors. They usually have real problems to
deal with. You said the Department is targeting sophisticated
and large-scale drug traffickers. They rely upon State and
local law enforcement to go after lower-level drug activity,
although they are usually overwhelmed with things that really
affect people.
In the wake of the recent guidance, we have heard some
concerns that the Federal Government is abdicating its
responsibility for enforcing drug laws in Colorado or
Washington State, and that the Department's decision will lead
to free-for-all drug activity in those States.
I assume you do not agree with that characterization that
the Justice Department is abdicating its responsibility for
enforcing federal drug laws in those States.
Mr. Cole. I do not agree with it at all, Mr. Chairman. I
think it is quite the contrary. What I think is very clear in
our memo is that we are going to aggressively enforce the
Controlled Substance Act when it implicates any of the eight
priorities that are listed there, and I think that is a pretty
fulsome list of priorities of important public safety issues
that are present and associated with marijuana.
We expect to continue to enforce the CSA in every State,
whenever a priority is implicated, whether the State has a
State law legalizing marijuana or not. We are not giving
immunity. We are not giving a free pass. We are not abdicating
our responsibilities. We are dedicating ourselves to enforcing
the Controlled Substances Act in regard to marijuana when it
implicates those federal priorities.
Chairman Leahy. Are you going to monitor the implementation
of the regulatory system in these States?
Mr. Cole. We will certainly be looking at how they go about
implementing it, and we hope that they will be doing it in a
full and robust way. But largely how we operate is on a case-
by-case basis, and when we see somebody who is marketing
marijuana in a way that is going to be attractive to minors, we
are going to go after them. If we see somebody who is growing
and cultivating marijuana so they can export it out of State,
we are going to go after them. If they are involved in drug
cartels and illegal enterprises, we are going to go after them.
Chairman Leahy. Now, you stated in your testimony that the
Department reserves its right to file a lawsuit challenging the
State laws in Colorado and Washington at a later time. The law
is clear, of course, that the Federal Government cannot force a
State to criminalize a particular type of conduct or activity.
So such a lawsuit would have to challenge the State laws
focusing on the regulatory framework set up by them but not on
the question of telling them what they have to criminalize or
not criminalize. Is that correct?
Mr. Cole. That is correct, Chairman Leahy. This was a
difficult issue that we had to contend with in deciding whether
or not to seek any preemption action here, because it would be
a very challenging lawsuit to bring to preempt the State's
decriminalization law. We might have an easier time with their
regulatory scheme in preemption, but then what you would have
is legalized marijuana and no enforcement mechanism within the
State to try and regulate it. And that is probably not a good
situation to have.
Chairman Leahy. Kind of an incentive for a black market,
isn't it?
Mr. Cole. Very much so, sir, and money going into organized
criminal enterprises instead of going into State tax coffers
and having the State regulate from a seed-to-sale basis.
Chairman Leahy. Basically everything the State voted for
you would be trying to overturn.
Mr. Cole. We would be trying to overturn that, and yet
there would still be decriminalization of marijuana, so it
would still exist in the State.
Chairman Leahy. Thank you.
Senator Grassley.
Senator Grassley. Mr. Cole, I have three questions, but
before I do that, I want to take 30 seconds out of my own time
to bring an issue up that I think you can help us with.
The DEA is refusing to comply with its legal obligations to
provide GAO access to DEA records. Senator Whitehouse and I
have a GAO request for a report on drug shortages that is being
delayed because of DEA's refusal. I tried to help resolve the
issue, but the Justice Department told DEA not to even meet
with me and GAO to discuss it. So I think that is unacceptable.
I understand that you admitted to the Comptroller General that
DEA has a legal obligation to comply. However, the Justice
Department and DEA are still withholding records from the GAO.
There is no point in wasting time and the taxpayers on
litigation with GAO, but that is where this is headed if DEA
does not comply.
So as Deputy Attorney General, I hope you can help us, to
work with us in Congress to solve this dispute. DEA needs to
provide GAO the information it needs to do its work. I do not
expect you to respond to that now, but I want you to know how I
feel about it, doing my job of oversight, and there is a
distinguished Member of the majority that is interested in it
as much as I am.
Mr. Cole. Thank you, Senator. I have actually been in
contact with the Deputy Administrator at GAO to discuss this
once already. We are planning on having another conversation in
the next week, I hope, and I am on top of this, Senator.
Senator Grassley. God bless you.
The Cole memorandum suggests that the Department will not
seek to enforce the Controlled Substances Act except for
certain federal priorities so long as the States that legalize
marijuana implement effective regulatory schemes. Those
priorities include the diversion of marijuana from Colorado to
other States, increased use among minors, and increased
fatalities from drugged driving. Yet Colorado has seen a sharp
uptick in each of these three priorities over the past few
years. Moreover, a recent audit concluded that the Colorado
Department of Public Health ``does not sufficiently oversee
physicians who make medical marijuana recommendations.''
Another recent audit found that the city of Denver did
``not have a basic control framework in place'' to regulate its
medical marijuana program. Denver did not even know how many
marijuana businesses were operating in the border.
So my question: Why has the Department decided to trust
Colorado to effectively regulate recreational marijuana when it
is already struggling to regulate medical marijuana and federal
priorities are already being negatively impacted? Before you
answer, would the Department establish metrics concerning these
priorities that will trigger when it will take action to either
challenge these laws or more vigorously enforce federal law?
I want to give you an example. From 2005 to 2012, there was
a 407-percent increase in Colorado marijuana interdiction
seizures that were destined for other States. How high would
that number have to go to trigger a change in policy? I hope
this is something that you have thought about.
Mr. Cole. Senator Grassley, we have thought a great deal
about these issues. I am certainly aware of the audit that was
done in Colorado about the enforcement of their regulatory
scheme under medical marijuana, and it was disappointing.
I think along the lines of what I talked to Chairman Leahy
about, there are no perfect solutions here. And what we were
faced with was a situation where we could not, we thought, be
very successful in trying to preempt the decriminalization. So
if we just went after their regulatory scheme, instead of just
having a bad one, they would have no regulatory scheme.
Our hope is that with this memo and with the engagement
with the State, telling them, as we say, trust but verify, that
they will have an incentive to actually put in a robust scheme
that will, in fact, address a lot of these issues that you have
raised and everyone else has raised and that are valid issues
in this area. And we are hoping that that kind of effort by the
State in enforcing its own State laws will have a better effect
than having no effort whatsoever.
So I understand the skepticism that you come to it with. We
are looking at it in terms of a trust-but-verify method. We
will be following what is going on. We have reserved quite
explicitly the right to go in and preempt at a later date if we
feel that that is in the public interest. And I think we are at
a point now where we are trying to find the best of the
imperfect solutions that are before us.
Senator Grassley. Question number two: You heard in my
opening statement how the Department did not consult with major
State and local law enforcement groups or with former DEA
Administrators when reaching policy decisions. Did the
Department consult with anybody at DEA, HHS, or the State
Department about these policies? And if not, why not? And if
so, what were their views?
Mr. Cole. Well, we did consult with HHS; we consulted with
DEA, ONDCP. We even heard from many of those groups who wrote
that letter. The Attorney General and I this morning met with
those groups in the Attorney General's conference room for
about an hour and a half. We had received a lot of input from
them concerning this matter prior to the decision that we made.
We stated to them quite clearly today that we should have
reached out to them one more time before we made the decision,
and we apologized to them for not making that extra effort. We
believed that we understood their position, but we have been
such good partners with them that we owed them one more
conversation and one more opportunity for them to weigh in, and
we asked their forgiveness and going forward assured them that
we would be giving them that kind of opportunity.
So we did seek out other views in coming to this. We tried
to be careful. We tried to be responsible, and we tried to look
at all of the avenues of it. And, in fact, much of the input
that we got from them and much of what you have been talking
about as the concerns that are around this helped us to be able
to crystallize and articulate in our eight different areas what
it is uniformly throughout the country what we think are the
problems that trigger federal enforcement in this area. So we
thanked them for that.
Senator Grassley. My last question. In 2010, Colorado was a
source State for 10 percent of all marijuana interdiction in
Iowa. That number grew to 25 in 2011, 36 percent in 2012. This
is all before legalization of recreational use in Colorado was
passed. In the words of Colorado Attorney General, the State is
becoming ``a significant exporter of marijuana to the rest of
the country.'' The Department's decision not to enforce federal
law is obviously imposing costs on States outside of Colorado
and Washington. These include public health costs and law
enforcement costs.
I would normally ask this question. I am going to make a
statement. If I am wrong--I doubt if the Federal Government has
plans to reimburse the States for these costs. If I am wrong on
that, tell me.
My question: What do you plan to do to protect States like
Iowa from marijuana diverted from States like Colorado?
Mr. Cole. I think there are two ways that we are hoping to
approach this. One is that if the States really do put in the
kind of robust system that we are asking them to, where there
is control from seed to sale, that it will help really tamp
down that kind of export out of Colorado into other States.
And, second, and at least as importantly, one of the main
priorities we have is the export of marijuana from States that
make it legal to any other State, and that will be a federal
enforcement priority. If it is being exported from Colorado to
Iowa and we find out about it, we will prosecute it.
Senator Grassley. Mr. Chairman, just a short follow-up. In
a previous question, the second question I had, you said you
consulted with State, HHS, and DEA. Did they agree with the new
policy that you have announced?
Mr. Cole. You know, Senator, we had a thorough discussion
with them. I do not think it is always appropriate to go into
what the internal deliberations are that take place, but we got
everybody's views, and we had a thorough discussion and aired
it out. And this was a well-thought-through process.
Senator Grassley. Thank you.
Chairman Leahy. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Mr. Cole, let me just kind of recap what brought us to this
point because I do not think we were in a very good place to
begin with. I begin with the Ogden memorandum from 2009 which
indicated that it would not be a federal enforcement priority
to prosecute, and I quote, ``individuals whose actions are in
clear and unambiguous compliance with existing State laws.''
And then it gave as an example individuals with cancer or other
serious illnesses, as another example, ``or those caregivers in
clear and unambiguous compliance with existing State law.'' It
then distinguished commercial enterprises that unlawfully
market and sell marijuana for profit, and a close reading of
the paragraph indicates that the term ``unlawfully'' refers to
State law, because the following sentence talks about
operations inconsistent with the terms, conditions, or purposes
of those laws, meaning State laws.
So we come out of the Ogden memorandum with protection from
federal prosecution for patients, caregivers, and lawful
commercial enterprises that are ``in clear and unambiguous
compliance with State laws.'' Among other things, that would
presumably include dispensaries.
So the next thing that comes out is the U.S. Attorney's
letter, which I assume is a Department of Justice product
because all of the U.S. Attorney letters that came out were
identically phrased, so I do not think this was a unique one to
Rhode Island. Now those protected from federal prosecution are
limited to seriously ill individuals who use marijuana as part
of a medically recommended treatment regimen in compliance with
State law. There is no longer any mention of caregivers. And
further in the paragraph it says that the Department of Justice
maintains the authority to enforce the CSA vigorously against
individuals and organizations that participate in unlawful
manufacturing and distribution activity, only for purposes of
this paragraph, the term ``unlawful'' has been reversed to now
mean federal law and eliminate any shelter of State law.
So there was a dramatic difference, I believe, between the
Ogden memo and the U.S. Attorney's letter, and it created
immense confusion, which you then sought to clarify somewhat in
your June 29, 2011, memo, which said that it will protect
individuals with cancer or other serious illnesses, and now
caregivers were back. They were out in the U.S. Attorney's
letter. They came back in your letter. Caregivers are back in.
And then you said, but it would not apply to commercial
operations, cultivating, selling or distributing marijuana. You
just dropped out the word ``unlawful'' rather than have to deal
with whether that word applied to federal law or State law. And
then you added that those who engage in transactions involving
the proceeds of such activity might be prosecuted, so somebody
that was paid with money that was earned by one of these folks.
The U.S. Attorney's letter had also singled out landlords
and property owners and financiers for prosecution. So as you
can imagine, this was a mess.
So I appreciate very much that the August 29th letter
straightened out that mess considerably. I do not dispute the
sense of the eight different federal priorities, but I just
want to--actually there is considerable but imperfect overlap
between your eight priorities and the priorities from the
original Ogden memo, lo those many years and memos ago.
But let me just be clear. As long as they are not the
proper subjects of federal prosecution under the eight 2013
federal interests, a dispensary can do business as long as it
is in clear and unambiguous compliance with State law. Correct?
Mr. Cole. I think the proper way to phrase it, Senator
Whitehouse, is, as long as they are not violating any of the
eight federal priorities in the course of what they are doing,
that the Federal Government is not going to prosecute them. And
the State law is up to State enforcement.
Senator Whitehouse. Understood.
Mr. Cole. But there also is, just in all fairness, there is
a catch-all at the end, and it is not meant to swallow the
entire memo, but you cannot anticipate everything that is going
to come in the future. So there is an ability, if it is an
important enough matter that we had not anticipated, to
prosecute another kind of case even if it does not fall within
the eight priorities.
Senator Whitehouse. Understood. And those who receive
proceeds from a lawful and proper State law enterprise will
also not be prosecuted unless they violate one of the eight
federal interests?
Mr. Cole. This is something that we are trying to work
through with the banking regulators, because the memo really
talks about the Controlled Substances Act. Now, the prosecution
otherwise on the banking end would be with the money-laundering
statutes, and those I think are separate matters, but as I have
said in answer to Chairman Leahy's questions, ones that we need
to deal with. There is a lot of public safety and public
interest aspects of that that I think we need to deal with as
we go down this road, and we are working on that.
Senator Whitehouse. But you are not intending to put people
who are simply getting their bills paid by a proper, lawful
State law enterprise from being the subject--it is not your
intention that they be the subject of prosecution, in the same
way that if you knew it was a criminal cartel and, no matter
what your business is, the proceeds of that cartel carry some
taint with them, and you can go after individuals--just because
they receive money, you can, if nothing else, reclaim the funds
as the proceeds of criminal activity. You are not intending to
use that unless those eight federal interests are implicated.
Mr. Cole. I think that is part of what we are trying to
work through right now in trying to deal with the money-
laundering aspect of it. But certainly this memo is meant to
guide our enforcement efforts concerning marijuana in regard to
the Controlled Substances Act, and it will probably spill over
in other ways as we are trying to work through these issues.
Senator Whitehouse. And, similarly, property owners,
landlords, and financiers should not fear federal prosecution
unless they implicate those eight federal interests.
Mr. Cole. Certainly a lot of that is covered by the
Controlled Substances Act, so that will be directly within the
ambit of the memo. That is correct.
Senator Whitehouse. Okay. Well, I think that helps clarify
things.
Senator Grassley raised a number of concerns relating--and
I thought from hearing them that all of them fell into the
category of either involving children or involving effects in
other States or involving a relationship with trafficking
organizations. And just to be clear, it is my understanding
that in all three of those situations, those are federal
interests that would be implicated, and the Federal Government
would be willing and able to prosecute in those areas.
Mr. Cole. That is correct.
Senator Whitehouse. Thank you. My time has expired.
Chairman Leahy. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman. Thank you for
having this hearing on a subject vitally important my home
State of Connecticut. As you know, our law, a new law,
currently allows the production and sale and use of marijuana
for medicinal purposes in a regulatory regime that I think is
fairly straightforward and complete, and certainly indicates
the will of our legislature in our State that Connecticut wants
to move in the direction of providing legal access to this kind
of substance. Essentially it decriminalizes statutes so that
anyone found in possession with less than half an ounce of
marijuana will be subject to a citation rather than criminal
action, and it, I think, mirrors other State laws that contain
similar kinds of provisions.
I do not want to speak for the Department of Justice, but
my guess is there are very few cases authorized by the
Department of Justice that involve simple possession of small
amounts of marijuana currently. That has been the ongoing
practice for some time, has it not?
Mr. Cole. I think that is correct, and from what we heard
from the State and local law enforcement organizations this
morning, they say there are very few of those under State law
as well.
Senator Blumenthal. Right. So that current practice will
not be altered by anything in the memorandum, as I read it.
Mr. Cole. That is correct.
Senator Blumenthal. And in terms of some of the other
priorities, my assumption is that the enforcement efforts there
on individual prosecution cases would depend to some extent on
the amounts of marijuana involved, would they not?
Mr. Cole. That is certainly a factor that is taken into
account. It is not the sole factor.
Senator Blumenthal. Would the resulting--and I apologize if
this question has been asked--action by the Department of
Justice, if there were not enforcement in some of these areas,
involve a challenge to the statutory scheme? And how would that
be brought? Or would it involve individual prosecution cases?
And how would you make those decisions?
Mr. Cole. Well, we did briefly talk before, in response to
Chairman Leahy's question, about what the legal mechanisms
would be to challenge the State laws. And, first of all, you
start off with the Controlled Substances Act has in its body
itself a disclaimer of preempting State laws in the area.
Because that is explicit in it, you would only have a challenge
if there is a conflict that is unreconcilable.
When you have a law that decriminalizes marijuana, it is a
very big challenge to challenge that law on a preemption ground
because it can co-exist with a federal law that criminalizes
it. We can go ahead and enforce our federal law regardless of
what the State law says.
We might be in a position and have a better case to try and
challenge the regulatory scheme, but that puts you in a
difficult position--there are no perfect solutions here--of
having the legalization or decriminalization of marijuana and
not even a legal structure for the State to try and regulate
it. And that is not a very good solution either. None of them
are very good in this field, frankly, but that seems to be one
that takes you in the wrong direction.
Senator Blumenthal. So the Department of Justice, as I
understand your answer, would be very cautious and deliberate
about any challenge to a regulatory scheme because the results
might do more harm than good.
Mr. Cole. We are going to have to look at all the facts and
circumstances that come up. We have certainly put the Governors
of Colorado and Washington State on notice that we expect them
to have robust systems. We hope that all the other States that
have medical marijuana or any other sort of legalized system
will view this memo as it should be taken, as telling them they
ought to have a robust system to regulate the marijuana usage
under their own State laws so that they deal with these eight
priorities which we think are important. And then we will make
our decisions as we see what kind of public interest issues are
raised in the course of this and what the need is for us to
take action.
Senator Blumenthal. I understand that the memo deals only
with Controlled Substances Act, but there are also provisions
in the Tax Code that forbid deduction of expenses by some of
these enterprises, non-criminal enterprises, dispensaries and
others engaged in medicinal marijuana businesses.
Has the Department of Justice taken a position on changing
the Tax Code to make those legitimate businesses eligible to
deduct common State expenses?
Mr. Cole. We have not taken a position on changing that
legislation. We think that is something that the U.S. Congress
should probably in its wisdom take up and debate and determine
what the appropriate course of action should be.
Senator Blumenthal. But it would probably be consistent
with your memorandum to have those expenses deducted, as long
as none of the other priorities are infringed on.
Mr. Cole. Well, our memorandum is really focused on what
the federal enforcement will be of the Controlled Substances
Act. There are obviously other issues that spin off of that
that do need to be dealt with, and I think those are the kinds
of things that the Senate and the House can debate and
determine if there is an appropriate policy change to be made.
Senator Blumenthal. And, finally, let me ask you about
Connecticut. Have there been consultations with Connecticut
officials about the implementation of that law?
Mr. Cole. Not that I am aware of right now, but the U.S.
Attorney there I am sure has been in touch with them. But I am
not positive.
Senator Blumenthal. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Whitehouse. Mr. Chairman.
Chairman Leahy. Yes, Senator Whitehouse.
Senator Whitehouse. May I make one point before the Deputy
Attorney General is excused?
Chairman Leahy. Of course.
Senator Whitehouse. You have three former prosecutors here,
and so we clearly appreciate the flexibility that it is
important for prosecutors to have, and we clearly appreciate
the discretion that prosecutors enjoy and that should be
protected by the Department. But at the same time, I think the
Department would be well advised to listen to Senator
Grassley's advice about trying to establish as clear metrics as
you comfortably can, because there can be a lot of unintended
consequences from the broad zone of uncertainty that you can
create, and that can frankly be quite harmful in and of itself.
So I think in this area, and particularly with respect to
the regulatory regimes and what you would expect to approve and
disapprove, the more you can move toward the kind of metrics
that Senator Grassley recommended, I think the better off you
would be. I speak only for myself on that, but I think it is--
that is my advice, anyway.
Senator Blumenthal. If I may add, Mr. Chairman, I would
second what Senator Whitehouse has just said, particularly as
Senator Grassley has pointed out some of the banking
implications. In Connecticut, my understanding is that some
bankers are reluctant currently to be involved with marijuana
businesses because they are fearful about violating federal
law. And the clearer and more definitive you can make your
expressions of prosecutorial policy, I think the more helpful
it will be to them insofar as they are aiding legitimate
businesses, not criminal enterprises, not businesses selling to
minors and others who may violate your priorities. So I would
second what Senator Whitehouse has just said.
Thank you.
Chairman Leahy. Thank you very much. And, Mr. Cole, thank
you very much.
Mr. Cole. Thank you, Mr. Chairman.
Chairman Leahy. We will call up Sheriff Urquhart, who is
the King County sheriff; Jack Finlaw, who is the chief legal
counsel in the office of Governor Hickenlooper; and Kevin
Sabet, who is the co-founder and director of Project SAM.
Sheriff Urquhart is the elected sheriff of King County in
Washington State. He is the sheriff of the State's largest
metropolitan county, so I think he is particularly qualified to
help us here. Sheriff Urquhart has been in law enforcement for
more than 35 years. He has been a patrol officer, field
training officer, master police officer, street-level vice and
narcotics detective, public information officer, and
administrative aide to several sheriffs.
Sheriff, would you go ahead and give your statement?
Incidentally, I am advised we may have another Syria meeting,
but all statements will be placed in the record in full. You
will also be able, when you see the record, to add to things
you said. So I would ask you to summarize your statement within
the five minutes.
And I hate to say this, Sheriff, because I know you and
others have traveled some distance to get here, and I
appreciate you being here. Sheriff, go ahead.
STATEMENT OF HON. JOHN URQUHART, SHERIFF, KING COUNTY SHERIFF'S
OFFICE, SEATTLE, WASHINGTON
Mr. Urquhart. Thank you, Mr. Chairman, and at the risk of
stating the obvious, I am a police officer. Thank you for
having me here today. My name is John Urquhart. I am the
sheriff of King County, Washington.
Seattle is located in King County, and with almost two
million residents, we are the 14th largest county by population
in the United States. I have over 1,000 employees in the
sheriff's office and a budget exceeding $160 million.
As sheriff, I am, therefore, the top law enforcement
official in the largest jurisdiction in the country that has
legalized marijuana.
I have been a police officer for 37 years, and I was
elected as King County's sheriff last year. During my career, I
have investigated everything from shoplifts to homicides. But I
have also spent almost 12 years as a narcotics detective. My
experience shows me that the War on Drugs has been a failure.
We have not significantly reduced demand over time, but we have
incarcerated generations of individuals, the highest
incarceration rate in the world.
So the citizens of the State of Washington decided it was
time to try something new. And in November 2012, they passed
Initiative 502, which legalized recreational amounts of
marijuana and at the same time created very strict rules and
laws.
I was a strong supporter of Initiative 502 last year, and I
remain a strong supporter today. There are several reasons for
that support. Most of all, I support 502 because that is what
the people want. They voted for legalized marijuana. We, the
government, have failed the people, and now they want to try
something else. Too often the attitude of the police is, ``We
are the cops and you are not. Don't tell us how to do our
job.'' That is the wrong attitude, and I refuse to fall into
that trap.
While the title of this hearing is conflict between State
and federal marijuana laws, I do not see a huge conflict.
The reality is we do have complementary goals and values.
We all agree we do not want our children using marijuana. We
all agree we do not want impaired drivers. We all agree we do
not want to continue enriching criminals. Washington's law
honors these values by separating consumers from gangs and
diverting the proceeds from the sale of marijuana toward
furthering the goals of public safety.
Is legalizing and regulating the possession and sale of
marijuana a better alternative? I think it is, and I am willing
to be proven wrong. But the only way we will know, however, is
if we are allowed to try.
DOJ's recent decision provides clarity on how we in
Washington can continue to collaborate with the Federal
Government to enforce our drug laws while at the same time
respecting the will of the voters.
It is a great step, but more needs to be done.
I hate to beat a dead horse here, but, for example, we are
still limited by not knowing the role of banking institutions
as we go forward.
Under federal law, it is illegal for banks to open
checking, savings, or credit card accounts for marijuana
businesses. The result is that marijuana stores will be
operated as cash only, creating two big problems for me as a
police officer: Cash-only businesses are prime targets for
armed robberies; and cash-only businesses are very difficult to
audit, leading to possible tax evasion, wage theft, and
diversion of the resources we need to protect public safety.
I am simply asking the Federal Government to allow banks to
work with legitimate marijuana businesses who are licensed
under this new State law.
In closing, let me make one thing abundantly clear. What we
have in Washington State is not the Wild Wild West. And as
sheriff, I am committed to continued collaboration with the
DEA, FBI, and DOJ for robust enforcement of our respective drug
laws. For example, I have detectives right now that are
assigned to federal task forces, including a DEA HIDTA Task
Force. It has been a great partnership for many years, and that
partnership will continue.
Furthermore, the message to my deputies has been very
clear: You will enforce our new marijuana laws. You will write
somebody a ticket for smoking in public. You will enforce age
limits. You will put unlicensed stores out of business. In
other words, the King County Sheriff's Office will abide by the
standards and laws voted on and adopted by the citizens of the
State of Washington and the guidance provided by the Department
of Justice on August 29th.
Mr. Chairman, I say to you and the Members of this
Committee, I do appreciate the deference the Federal Government
has shown to my constituents, and I look forward to continuing
that cooperation. Thank you.
[The prepared statement of Mr. Urquhart appears as a
submission for the record.]
Chairman Leahy. Thank you.
I am going to have each of the witnesses testify, and then
we will go to questions. But certainly the testimony based on
35 years' experience in law enforcement is extremely helpful.
Mr. Finlaw is the chief legal counsel for the Governor of
Colorado, John Hickenlooper. He served as co-chair of the task
force that recommended the legislation and rules to implement
Colorado's new constitutional provisions legalizing the
possession, use, and sale of marijuana in the State. He thus
has a unique perspective of the challenges facing States. They
deal with the conflict between State and federal marijuana
laws, and I believe prior to your current position, you were
chief of staff to the mayor of Denver. Is that correct?
Mr. Finlaw. That is correct.
Chairman Leahy. Thank you. Please go ahead, sir.
STATEMENT OF JACK FINLAW, CHIEF LEGAL COUNSEL, OFFICE OF
GOVERNOR JOHN W. HICKENLOOPER, DENVER, COLORADO
Mr. Finlaw. Thank you, Chairman Leahy, Ranking Member
Grassley, Members of the Committee. I have been working for the
past 10 months with a really large collection of Coloradans--
stakeholders, government officials, members of the marijuana
industry--to put together what we will affirm to you is a
robust and strong enforcement regime.
You know, the voters of Colorado approved what we called
Amendment 64 in 2012 by about 55 percent of the vote, even
though the Governor, the Attorney General, and State leaders
opposed the ballot initiative. But we determined with that sort
of clear statement from the people of Colorado, we needed to
effectively and efficiently implement the law. We began through
a stakeholder process, through a task force, followed by very
detailed enabling legislation by the Colorado General Assembly,
and now just yesterday, the Colorado Department of Revenue
issued 141 pages of regulations to regulate the industry.
Within days of passage of Amendment 64, the Governor, our
Attorney General, got on the phone with General Holder and
began this conversation about this conflict of federal and
State law. And although we just recently, as we have talked
about today, received official guidance, we do want to
recognize that General Holder, the Justice Department, our U.S.
Attorney, was very forthcoming about expressing federal law
enforcement's concerns about this new legalization effort, and
it really allowed us to focus our efforts to develop a robust
regulatory and enforcement regime for marijuana in Colorado.
One of the things we did besides passing bills to regulate
the industry, we enhanced tools for law enforcement by passing
a new law that gives law enforcement the ability to better
address the issues of impaired driving. We now have a law that
provides that if a driver's blood contains five nanograms or
more of THC, there is a permissible inference that the driver
was driving under the influence.
We really appreciate the collaboration we have had with
federal officials. We know we have more to do. As has been
discussed today, we have audits critical of some of the things
we have done in the past to address. I will say that the main
reason that we have had failures of regulation of our medical
marijuana industry is because we have lacked the resources to
hire staff and partner with law enforcement. But we are sending
to the voters this fall a marijuana tax measure that will
provide the kind of revenue we need to hire staff to also work
on public health issues related to marijuana and education and
prevention efforts that we are determined to focus on.
The bottom line is we commend the Department of Justice for
this guidance that they have issued in the new Cole memo. We
think it was, for us, timely clarification because we were in
the final weeks of doing our rules, and so we got it in time to
make sure that our rules complied with the enforcement
priorities outlined in the Cole memo. We actually affirm and
embrace those eight priorities, and we look forward to working
with the Federal Government. Our Department of Public Safety,
our local law enforcement will work with federal law
enforcement. We have a great working relationship with our U.S.
Attorney, and I think that you will discover that not only will
Colorado's regulators and law enforcement want to partner with
federal law enforcement, but the industry will as well.
One of the things I have discovered in working on marijuana
issues over the last 10 months is how entrepreneurial, how much
integrity the folks in our State that have developed these new
businesses have. I would compare them to folks that you have
all met as you have toured wineries in Napa or gone to
distilleries in your State, Mr. Chairman. I know they make some
great rye whiskey in Vermont. These are the same types of folks
who have established medical marijuana dispensaries, grow
operations in Colorado, and they will be partners with us in
making sure that minors do not have access to marijuana, that
the marijuana does not flow to Iowa or other States.
I think that we look forward to a very successful
regulatory regime, and I will echo the sheriff's comments and
other comments we have heard today about the banking issue. It
is both a law enforcement issue and a regulatory issue, and
also the tax issue.
So we look forward to working with our Members of Congress
to address those issues.
[The prepared statement of Mr. Finlaw appears as a
submission for the record.
Chairman Leahy. Well, thank you, Mr. Finlaw.
And, without objection, I will also put in the written
testimony of Washington Governor Jay Inslee and Washington
Attorney General Bob Ferguson in the record. Their views are
also important and relevant.
[The information referred to appears as a submission for
the record.]
Chairman Leahy. Our next witness is Kevin Sabet, who is the
co-founder and director of Project SAM, Smart Approaches to
Marijuana, and the director of the Drug Policy Institute of the
University of Florida. He previously served in the Office of
National Drug Control Policy in various capacities. He has
written extensively about this topic.
Please go ahead.
STATEMENT OF KEVIN A. SABET, PH.D., DIRECTOR, UNIVERSITY OF
FLORIDA DRUG POLICY INSTITUTE, DEPARTMENT OF PSYCHIATRY,
DIVISION OF ADDICTION MEDICINE; AND DIRECTOR, PROJECT SAM
(SMART APPROACHES TO MARIJUANA), CAMBRIDGE, MASSACHUSETTS
Mr. Sabet. Thank you, Chairman Leahy, Ranking Member
Grassley, and distinguished Members of the Committee, for
providing me with the opportunity to appear before you today to
discuss marijuana policy.
As mentioned, I have studied, researched, and written about
drug policy for almost 18 years. I am currently the director
and co-founder, with former Congressman Patrick Kennedy, of
Project SAM (Smart Approaches to Marijuana).
Because we share the Obama administration's drug control
goals of reducing drug abuse and its consequences, I and dozens
of prevention, treatment, medical, and scientific groups around
the country found the recent guidance by the Department of
Justice disturbing on both legal and policy grounds. The
guidance, which expressly defers the Department's right to
challenge and preempt laws legalizing marijuana, contradicts
the Controlled Substances Act, both on the policy and legal
level, especially policy principles designed to protect public
health and safety.
Colorado and Washington have now been given the green light
to become the first jurisdictions in the world to allow for the
creation of large, for-profit marijuana entities, far
surpassing any reforms in Europe.
Now, I think I should mention that the Controlled
Substances Act is an important tool for public health. In fact,
by keeping marijuana illegal, its use is a sixth and a third
lower than alcohol and tobacco, respectively, in the United
States.
I applaud the way the Controlled Substances Act has been
used so far by the Federal Government--not to go after low-
level users with an addiction problem, but instead to target
drug traffickers and producers. This is not about putting
marijuana smokers in jail. In fact, analyses have long debunked
the myths that our prison cells are full of people whose only
crime was smoking marijuana.
Indeed, as a side note, if we were today to let out every
single person in the United States for any drug offense, our
incarceration rate in the U.S. would be four times its
historical high, not five times. Still a massive incarceration
problem, regardless of drug offenses.
Now, we do not have to wait for legalization to happen. For
several years, many States like Colorado have been operating
with a de facto legalization policy under the guise of
medicine. In fact, we can get--and anybody who has been to
Colorado since 2009 can get--a sense of full legalization. Mass
advertising and promotion, using items that are attractive to
kids, whether they are ``medical marijuana lollipops,'' ``Ring
Pots,'' ``Pot-Tarts'' to mimic Pop Tarts. These are all
characteristics of current policies.
The result, as mentioned, has been an increase in drug-
related referrals for high school students and more
unintentional marijuana poisonings now reaching children as
young as five. And the fact that three-quarters of kids in
treatment in Colorado today report that their marijuana came
from a medical marijuana dispensary.
Now, this is all consistent with the recent National Bureau
of Economic Research paper conducted by RAND researchers that
found that two distinct features in marijuana policy increases
use. Those two features are home cultivation and legal
dispensaries. Now, these are found, obviously, in some States
that have legalized this under medicine.
Now, this should matter because, despite popular myth,
scientists from the American Medical Association, the American
Academy of Pediatrics, the American Psychological Association,
the American Society of Addiction Medicine--and we could go on
and on--are universal in stating that marijuana is harmful for
young people. Marijuana use, especially among young people, is
significantly associated with a reduction in IQ, mental
illness, poor learning outcomes, lung damage, and addiction.
According to NIH, one out of every six kids who tries marijuana
will become addicted, and last year, 400,000 emergency room
admissions were applicable for marijuana.
Now, in Colorado, though traffic fatalities have fallen
over the last six years, marijuana-related fatalities on the
roads have increased.
Now, we already have evidence showing that in some cases,
quote-unquote, medical marijuana is going to criminal
enterprises and foreign drug-trafficking groups. We know, as
Senator Grassley mentioned, about the diversion to other States
and interdiction, and we also know, as mentioned, that two very
damning State audits released in the last month shows that
there has been no, quote-unquote, seed-to-sale nonvertical
integration of marijuana policy in States that have allowed
this for medical purposes. How on Earth can we think that a
task so much more infinitely difficult of full legalization is
going to be handled any better?
Now, right now, we are at a precipice. By threatening legal
action, the administration can prevent the large-scale
commercialization of marijuana. In fact, you all know, after
spending decades of fighting Big Tobacco, we are now on the
brink of creating Big Marijuana. An executive from Microsoft is
teaming up with a former president of Mexico in their assertion
that they will mint more millionaires than Microsoft in their
creation of the Starbucks of Marijuana. This is what people in
public health care about. The issue of a small amount used by
an adult in the privacy of their own home is not what the
initiatives in Colorado and Washington are about.
So I would just conclude by saying when we can prevent the
negative consequences of commercial sale and production of
marijuana now, why would we open the floodgates, hope for the
best, and try with our limited resources later to patch
everything up when things go wrong?
Thank you.
[The prepared statement of Mr. Sabet appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
Let me go back to Sheriff Urquhart, because you have heard
what Dr. Sabet has said, and others. And I am interested in
your insight with 35 years in law enforcement, a significant
part of that as a narcotics detective. Your sheriff's
department is larger than all our law enforcement in Vermont
put together. Those who criticize your State's initiative have
asked whether legalizing small amounts of marijuana could
result in increased drugged driving or illegal use by minors,
cross-border trafficking. You have heard all those concerns.
How do you address them from a public safety point of view?
Mr. Urquhart. I think what we need to do is continue doing
what we have been doing all along, which is really robust
enforcement. This is not going to change a whole lot. The rules
that are in place or about to be in place in the State of
Washington put a limit on the amount of marijuana that can be
produced, and with the idea that they are only going to match
demand. They are not going to produce enough so it can be
exported to other States.
Now, that is not to say illegal marijuana grows, like I am
sure is going on in Colorado, are not going to be exported. But
we can go after those, and we will go after those. We do not
expect what is grown legally under the new system to be
exported.
As far as driving, under this new law we now have a way to
go after people that are driving under the influence of
marijuana. In the past, it was very, very difficult to get a
conviction. Now we have a per se standard of five nanograms per
milliliter of blood. Now we have a standard that we can use,
just like we use 0.08 for driving under the influence of
alcohol. We never had that before.
So one of the things that I am doing is retraining many of
my deputies so they can be drug recognition experts, so when
they go to the scene of a suspected drugged driver who is under
the influence of narcotics, where there is any narcotic or
marijuana, they can test that driver to see if they need to
arrest that person and take them in for a blood test. It is
something brand new.
Chairman Leahy. I am not even sure we have that standard in
my State of Vermont. I recall the frustration as a prosecutor
when I was there because we did not have a standard we could
use. Alcohol was easy. We had a very strict standard.
So your commitment is to enforce the law as it is in your
State. Are there areas where the Federal Government can help
you?
Mr. Urquhart. Absolutely. And I think the clarifying letter
that came out on August 29th helped immensely. It removed the
uncertainty that we had. It knows that they are going to allow
the citizens of the State of Washington what they want, and
what they want is legalized marijuana. And that is a very big
deal, I think. It is going to take the criminal element as best
we can out of the sale of marijuana, and that really was
brought home to me just two nights ago when I was here in
Washington, D.C. My chief of staff here in the front row, Chris
Beringer, and I went out to dinner. We went to Old Ebbitt's
Grill just two or three blocks from the White House. We are
walking back to our hotel. It is about nine o'clock at night,
but it is dark. We saw two gentlemen, young gentlemen, college
age, walked up to a man standing on the corner, and says,
``Hey, can I get some weed around here? ''
Now, they certainly did not come up to us, but they did go
up----
Chairman Leahy. I take it you were not in your uniform.
Mr. Urquhart. I was not wearing this outfit, no.
[Laughter.]
Mr. Urquhart. But they did go up to the most sketchy guy on
the block--the most sketchy guy on the block--to try and buy
weed. That is going to go away in Washington, because they can
go into a store--not a Starbucks store. They can go into a
free-standing store and buy their marijuana legally. So they
know what they are going to get. They know what the price is
going to be. They do not have to go to that criminal element on
the street corner at nine o'clock at night and solicit somebody
to sell them marijuana. Our 502 is going to eliminate all of
that, and that is a huge step forward.
Chairman Leahy. My time is almost up, but I want to ask Mr.
Finlaw a similar question, because I understand that Governor
Hickenlooper did not support the constitutional amendment to
legalize marijuana in Colorado, but it is very clear from your
testimony that you intend to follow the law and make sure it
works.
I understand that the lack of access to financial services,
and the inability to deduct business expenses, for example,
from federal taxes, are cited as hurdles to successful
regulation of the marijuana business. Am I correct in that?
Mr. Finlaw. Yes, Chairman Leahy, you are correct. Thank you
for raising that issue. You can understand that these
businesses that are cash-only, that have dozens of employees,
payroll to make; they are dealing with cash, not with credit
cards, they are having to find loans from disreputable
financial institutions, it is a great challenge. It is a
criminal challenge as well as a regulatory challenge. It is
criminal, of course, because any business that has that much
cash on hand and is having to transport it is ripe for robbery.
It is also a regulatory challenge, because it will be so
much easier to audit the books to make sure that the taxes are
being paid, make sure that the rules that we put in place are
being followed if the folks are doing business with a bank or
credit union or other financial institution.
Chairman Leahy. Thank you. My time is up. I have further
questions that I can submit for the record.
Senator Grassley.
Senator Grassley. I have a couple questions for Mr. Finlaw
and one for Mr. Sabet. I will start with you, Mr. Finlaw. There
has been a sharp uptick in drug-related suspensions and
expulsions in Colorado schools in recent years, and in the
State's second largest city, Colorado Springs, drug-related
referrals for high school students testing positive for
marijuana has increased every year between 2007 and 2012.
With legalization for recreational use, the challenges to
protect youth will increase, and yet I understand that under
certain circumstances the rules in Colorado will allow for
marijuana advertising on television and radio. The rules will
permit marijuana businesses to maintain Web sites that could be
accessible by children, and the rules will permit marijuana-
themed magazines to be sold in stores within the reach of
children.
My question is: If I am right on those things I just cited,
won't all these rules all effectively allow marijuana
advertising to children? And then why do you believe that
Colorado can successfully protect children from marijuana?
Mr. Finlaw. Senator Grassley, you raise some really
important issues that we have been grappling with. Even the
constitutional amendment authorizing marijuana has typically
said that advertising directly to children can be prohibited.
The enabling legislation and the new rules also do the same. So
we have tried to develop rules that are narrowly focused on
making sure that, whether it is print, television, radio, Web
advertising, that it will not be targeted at young people.
Cartoon characters and other advertising that would be
particularly appealing to young people are prohibited.
The final rule, which was based upon testimony at our
rulemaking hearings, provides that if there is to be
advertising for marijuana, there has to be documentary evidence
that the audience--that no more than 30 percent of the audience
is young people. So that advertising will be restricted.
The problem we have had, one of the rules that was adopted
in May has already been voided under First Amendment grounds.
So we have First Amendment issues to grapple with as we try to
restrict advertising.
But the good news is that the voters of Colorado are going
to have an opportunity to approve a new tax in November that
will give us the resources to develop sort of best practices
for education and prevention efforts.
So what we intend to do is counter any ads with very, very
strong and effective programming that will be public service
programming that will be geared toward young people to let them
know that--because we agree with you. We believe that for
adolescents, marijuana is a danger, and we intend to educate
them.
Senator Grassley. Okay. Also, Mr. Finlaw, you had an
interview with NPR in February: ``We have very strict controls
over who can have access to medical marijuana.''
There was an audit by your State in June concluded by the
Colorado Department of Public Health ``does not''--let me start
over again. But an audit by your State in June concluded that
the Colorado Department of Public Health ``does not
sufficiently oversee physicians who make medical marijuana
recommendations.'' The audit noted that one physician had
recommended marijuana for over 8,400 patients.
Would you still stand by your statement that Colorado has
strict control over who can have access to marijuana? And if
so, why would you stand by it? And why with these damaging
audit findings should the Department of Justice have confidence
that Colorado can implement robust regulation of recreational
marijuana?
Mr. Finlaw. Thank you. You are right. As a matter of fact,
in our conversation with General Holder just a few weeks ago,
he raised the same question to us. He asked us about those
audits, and he told us we needed to address the issues that are
raised in those audits, and we are committed to doing that.
The particular audit you talked about is the regulation
over doctors who issue prescriptions. What I meant when I was
quoted in February was that we have got really good medical
marijuana rules and regulations. What we have not done a good
job of is enforcing those because we have lacked the resources.
With the new tax coming, with the advent of legalized
marijuana, we will have the resources to hire staff to enhance
our oversight of doctors, of those other businesses that are
involved in the marijuana world.
Senator Grassley. My time is up. I will submit one question
to you and one to Mr. Sabet for answer in writing. Thank you.
[The questions of Senator Grassley appear as submissions
for the record.]
Senator Whitehouse [presiding]. Sheriff Urquhart, let me
ask you, are you familiar with the eight federal interest areas
in the----
Mr. Urquhart. Yes.
Senator Whitehouse. Are you satisfied with those?
Mr. Urquhart. Yes.
Senator Whitehouse. From a law enforcement perspective, you
think that they are adequate and appropriate?
Mr. Urquhart. Absolutely, and we will have no problem
meeting those at all. Now, some of them do not apply
necessarily straight to the sheriff's office, but many of them
do. But from what I have seen from the regulatory standpoint
that the State is enacting, I think it is going to work out
very well. I have no problem with those whatsoever, and I thank
the Justice Department for coming forward with those when they
did.
Senator Whitehouse. And, presumably, given all your years
in law enforcement and your years as a narcotics investigator,
you have worked with the Federal Government on federal
investigations in the past in various capacities, correct?
Mr. Urquhart. That is correct. And my detectives are doing
that currently, yes.
Senator Whitehouse. And are there current activities
basically in the same areas that these eight federal interest
areas provide for? Or do you see any areas of activity that you
are undertaking now that would stop?
Mr. Urquhart. No, not at all. In fact, a week ago, we
assisted with serving several federal search warrants and
confiscated $193,000, several guns, heroin, methamphetamine,
marijuana, and we do that all the time. And that is not going
to change. Our cooperation with the Federal Government is not
going to change one iota because of Initiative 502.
Senator Whitehouse. And so by limiting itself to those
eight areas of federal interest, you do not see that reducing
the federal law enforcement footprint in the State of
Washington in any significant respect?
Mr. Urquhart. Absolutely not.
Senator Whitehouse. Very good.
From a public health and safety point of view, Mr. Finlaw,
how do you feel about the eight areas of federal interest? Are
they adequate from your perspective?
Mr. Finlaw. We also embrace those. The task force that we
have put together to implement our new law developed guiding
principles, and they were amazingly parallel with the Justice
Department's guidance to us. And while this was a formalization
of guidance, we really appreciate the fact that throughout this
process the Justice Department, particularly through our U.S.
Attorney's Office, has been very forthcoming about their
general concerns about this new law, and it really allowed us
to focus as we developed our legislative and regulatory
response.
Senator Whitehouse. And you are the Governor's legal
counsel.
Mr. Finlaw. Yes.
Senator Whitehouse. A great job. I used to have that job.
You have the responsibility of representing the Governor in the
legal negotiations about the enforcement program, the
regulatory program. Say a word, if you will, about the comments
that Senator Blumenthal and I concluded Deputy Attorney General
Cole's testimony with about the importance of the Department
providing metrics that are as clear as possible so that people
know what the rules are that they will be engaging in.
Mr. Finlaw. Well, let me affirm what both you and Senator
Blumenthal said. We and I believe that the industry itself in
Colorado would really appreciate that sort of guidance. Our
Department of Public Safety, our State Patrol, our Bureau of
Investigation in Colorado, along with local law enforcement all
will appreciate definitive guidance, and I think it will--when
the day comes, if there is evidence of an operation that is
appealing to young people or exporting marijuana grown in
Colorado to other States, an enforcement action that shuts that
down would be welcome by us.
Senator Whitehouse. My time has nearly expired but, Dr.
Sabet, I assume that your policy disagreement with the choice
to decriminalize or make medical marijuana available would
drive your answer to all those questions. You are opposed to
the metrics. You are opposed to the eight areas of interest.
You think that we should just continue along the previous path?
Mr. Sabet. Well, not necessarily. I mean, I think the eight
provisions are as agreeable as baseball and apple pie. I do not
know anybody who would say that those provisions are not
helpful. The issue is--which I think you bring up, which is
very helpful--how are we going to be monitoring and what are
the specific metrics that the Federal Government is going to
use to trigger enforcement.
Senator Whitehouse. So prospective metrics are very
important?
Mr. Sabet. They are extremely important. You know,
yesterday there were 4,000 joints publicly passed out in
Colorado by the campaign, who used to be in favor of
legalization, now is against the tax, and they just launched
their campaign by handing out 4,000 joints publicly. At a
marijuana festival in Seattle a month or two ago, 50,000 people
smoked marijuana publicly. I mean, so if we are talking about
actually doing the enforcement at the local level, I just have
not seen the evidence so far that we are going to try and rein
in these big industries that are going to advertise on the
Internet legally. I do not know any kid who watches TV anymore.
It is all on social media. Advertisements in these two States
will be legal on the Internet for kids.
These are the kinds of things that worry the Academy of
Pediatrics and others and myself, and so we will be monitoring
this with a very watchful eye.
Senator Whitehouse. Got it. Well, we look forward to
working with you on that, and I want to extend through you my
personal best wishes to Congressman Kennedy, who was a
colleague in my delegation for many years and who I respect
very greatly.
Mr. Sabet. Thank you.
Senator Whitehouse. Senator Blumenthal.
Senator Blumenthal. I would say the same, if you could pass
along my best wishes. And as I understand your position, it is
not so much against legalization but the evils and abuses that
may be the result. And I wonder if you could say--I know you
alluded to it in your testimony--whether, in fact, those evils
or abuses have, in fact, occurred in Colorado and Washington.
And what would be your advice to Connecticut?
Mr. Sabet. Sure. Well, I have definitely seen them already
occurring in these States, and I do not--you know, I understand
State officials are in very difficult positions here trying to
implement these laws that have been passed by a majority of
their voters. But the effects of what we have seen, for
example, in a State like Colorado, where less than two percent
of people with cards that authorize them to use marijuana
medically have cancer, HIV, or any other serious chronic
illness, that we have seen them being handed out like candy,
that we have seen the mass advertising already, that worries
me. What we see with the public use of marijuana in places like
Washington, especially in places like Seattle, that worries me.
So, again, I just do not see the evidence of--although it
is a difficult task of trying to implement something robust and
trying to enforce that, especially in the face of an industry
that will be pushing back against every single kind of
provision like putting magazines that advertise marijuana just
behind the counter so they are--and I know the Governor tried
to do that and then dropped that lawsuit when it was
challenged. Or, you know, things like in Washington State how
you--although packaging will be sterile, you can still have,
you know, gummy, candy-shaped, attractive to kids marijuana
products. You can still have marijuana products that are
edibles, that are actually sometimes a thing that is sending
more people to ERs than even joints in terms of an
inexperienced marijuana user eating a marijuana brownie that
has very concentrated forms of THC in that brownie all at once,
that can be a very traumatic experience for some people. So I
do not see any of that being regulated, and that is what I
worry about.
In terms of the position that SAM and others and myself
have put forward, you know, again, I think we are positing that
in a country with the First Amendment, in a country that has
seen the alcohol and tobacco industries relentlessly target
kids--and, by the way, target addicts because these industries
do not make money off of casual users. The marijuana industry
does not make money off of the person who decides once every 10
years to light up a joint. The industries--alcohol and tobacco
are included--make money off of addiction. They make money off
of the small amount of users that consume the vast amount of
the volume.
What I worry is that inevitably in this country American-
style legalization is commercialization, is promotion, no
matter the best interests that State officials and regulators
and liquor control boards and others try and implement. So that
is the worry. It is not about imprisoning people for small
amounts. It is not about saddling people with criminal records
who get caught with a small amount. It is about this mass
commercialization.
Senator Blumenthal. I wonder if the two other witnesses
reacting to the points that have just been made about the
problems that have arisen under the Colorado and Washington
laws would respond.
Mr. Finlaw. You know, I think that we do agree with the
concerns that Dr. Sabet has raised with respect to the dangers
of products that are designed for young people, and so we have
put into place some significant restrictions on packaging and
labeling. The gummy bear story, you are right, it is a problem.
And our Department of Public Health, our regulators who are
looking over the licensed premises, will be making sure that
those types of packages, that type of promotion for young
people does not happen in Colorado. It has happened,
admittedly, in the past, but we are going to redouble our
efforts to make sure that young people do not have
encouragement and do not take the fact that it is now legal for
adults as a sign that it is good for kids.
Mr. Urquhart. I think there are some urban myths that are
floating around out there that Seattle is going to turn into
the Starbucks of Marijuana, for example, that 50,000 people
were all smoking at Hemp Fest in downtown Seattle a couple of
weeks ago, that there is going to be gummy bears infused with
marijuana. That is just not going to happen in the State of
Washington. Big business is not going to take over the
marijuana business, the legal marijuana business in the State
of Washington. There is no vertical integration allowed. The
processors and the growers of marijuana cannot own retail
stores. Only three retail stores can be owned by one owner, for
example. No advertising. Security, surveillance systems. Lots
and lots of protections in place to make sure marijuana is not
sold, marketed to people under the age of 21 or used by people
under the age of 21 in any way, shape, or form.
We realize what is going on. We are going to avoid that
when it comes to legalizing marijuana for recreational
purposes.
Senator Blumenthal. Thank you.
Thank you, Mr. Chairman. My time has expired. Thank you to
all of you for being here today.
Senator Whitehouse. Thank you. Well, that brings this
hearing to its conclusion. Let me thank Deputy Attorney General
Cole and our three witnesses on the second panel for their
contributions to our understanding and work on this issue.
For those who wish to add anything to the record of this
hearing, the record will be maintained open for one additional
week. But other than that, we are adjourned
[Whereupon, at 4:25 p.m., the Committee was adjourned.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC] [TIFF OMITTED]
Prepared Statement of Ranking Member Charles Grassley
[GRAPHIC] [TIFF OMITTED]
Prepared Statement of Chairman Patrick Leahy
[GRAPHIC] [TIFF OMITTED]
Prepared Statement of Hon. James Cole, Deputy Attorney General, U.S.
Department of Justice, Washington, DC
[GRAPHIC] [TIFF OMITTED]
Prepared Statement of Hon. John Urquhart, Sheriff, King County
Sheriff's Office, Seattle, Washington
[GRAPHIC] [TIFF OMITTED]
Prepared Statement of Jack Finlaw, Chief Legal Counsel, Office of
Governor John W. Hickenlooper, Denver, Colorado
[GRAPHIC] [TIFF OMITTED]
Prepared Statement of Kevin A. Sabet, Ph.D., Director, University of
Florida Drug Policy Institute, Department of Psychiatry, Division of
Addiction Medicine; and Director, Project SAM (Smart Approaches to
Marijuana), Cambridge, Massachusetts
[GRAPHIC] [TIFF OMITTED]
Questions
Questions submitted by Senator Dianne Feinstein for James M. Cole
[GRAPHIC] [TIFF OMITTED]
Questions submitted by Senator Charles Grassley for James M. Cole
[GRAPHIC] [TIFF OMITTED]
Questions submitted by Senator Patrick Leahy for James M. Cole
[GRAPHIC] [TIFF OMITTED]
Questions submitted by Senator Al Franken for James M. Cole
[GRAPHIC] [TIFF OMITTED]
Questions submitted by Senator Charles Grassley for John Urquhart
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Questions submitted by Senator Charles Grassley for Jack Finlaw
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Questions submitted by Senator Charles Grassley for Kevin Sabet
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Answers
Responses of James M. Cole to questions submitted by Senators Leahy,
Grassley, and Feinstein
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Responses of John Urquhart to questions submitted by Senator Franken
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Responses of John Urquhart to questions submitted by Senator Grassley
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Responses of Jack Finlaw to questions submitted by Senator Grassley
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Responses of Kevin Sabet to questions submitted by Senator Grassley
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Miscellaneous Submissions for the Record
Letter to Attorney General Eric Holder from Steven F. Lukan, Director,
Iowa Governor's Office of Drug Control Policy
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Letter to Attorney General Eric Holder from National Law Enforcement
Organizations in Hennepin County, Minnesota; Hughes County, South
Dakota; Association of State Criminal Investigative Agencies;
International Association of Chiefs of Police; Police Executive
Research Forum; and National Narcotic Associations' Coalition
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Letter to Attorney General Eric Holder from the Former Administrators
of the Drug Enforcement Administration (1973-2007)
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Letter to Senator Leahy from Dennis J. Gallagher, City Auditor, Denver,
Colorado
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Americans for Safe Access, ``Three Areas of Inquiry for `Conflicts
Between State and Federal Marijuana Laws' ''
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Tamar Todd, Senior Staff Attorney, Drug Policy Alliance, Office of
Legal Affairs, statement
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Governor Jay Inslee and Attorney General Bob Ferguson, Washington
State, statement
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Letter to Senator Leahy from Mark A.R. Kleiman, Professor of Public
Policy, UCLA Luskin School of Public Affairs, Los Angeles, California
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Letter to Senator Leahy from Hon. Dana Rohrabacher, 49th District,
California
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Letter to Senator Leahy from We Can Do Better Coalition: Sue Rusche,
National Families in Action; A. Thomas McLellan, Treatment Research
Institute; Kevin Sabet, Project SAM (Smart Approaches to Marijuana)
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Hon. Ed Perlmutter, 7th District, Colorado, statement
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Letter to Treasury Secretary Lew, Chairman Bernanke, Chairman
Gruenberg, Comptroller Curry, Director Corday, and Chairman Matz from
Hon. Ed Perlmutter, 7th District, Colorado, and Hon. Denny Heck, 10th
District, Washington State
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Letter to Senator Leahy from Lori Augustyniak, Prevention Works! VT
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[all]