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Canna Law Blog

LEGAL SUPPORT FOR THE CANNABIS BUSINESS COMMUNITY SINCE 2010

Marijuana Legalization: The International Edition

Posted in Legal Issues
It's a big world out there and we will be writing more on what is happening with cannabis in it.

It’s a big world out there and we will be writing more on what is happening with cannabis in it.

Most countries, including the United States, are parties to a collection of international drug control treaties—the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances—which require signatories to outlaw the manufacture, distribution, and possession of certain controlled substances (like heroin, cocaine, methamphetamine, and cannabis). These treaties are enforced on an international level through the United Nation’s International Narcotics Control Board (INCB), which, as you can imagine, isn’t too thrilled with countries legalizing cannabis.

Despite the INCB’s misplaced objections, many countries have begun liberalizing their cannabis laws. The result is a patchwork of laws, much like you see on a state-by-state basis here in the United States. For example, in North Korea—one of the most oppressive countries on earth—cannabis is 100% legal. In Indonesia, on the other hand, cannabis possession is punishable by death. Most countries, including the United States, fall somewhere in between these two extremes. Despite the United States’ legalization movement generating the most media attention , many other countries are far ahead of the United States in terms of cannabis laws and policy.

Israel has been at the forefront of cannabinoid research and has operated a medical program since 2007. Uruguay is experimenting with a combination of home grow and a government monopoly model of taxing and regulating sales; it plans to issue commercial growing licenses within the year. Chile is taking a more measured approach, recently harvesting first crop of cannabis under a pilot program serving approximately 200 patients. By contrast, Canada’s medical cannabis program serves approximately 40,000 patients, who can purchase their medicine through Amazon.com-style online marketplaces. The Netherlands has had legal cannabis for quite some time.

Other countries are one-by-one loosening up on cannabis prohibition. Australia will likely be planting its first medical marijuana crop soon (which it could export internationally), and a legalization bill is currently pending and gaining momentum in its Parliament. Jamaica has made big moves this year by decriminalizing cannabis and moving forward with government-sanctioned research programs, in an attempt to set the stage for full-scale commercialization.  Many other countries have opted out of commercialized cannabis, but nonetheless have decriminalized possession in small amounts.

State-by-state and country-by-country, the cannabis legalization movement is truly an international movement and shows no signs of slowing down. That’s why we will in the future be writing more often on developments in cannabis law outside of the United States, mostly by taking in-depth looks at countries that have, are, or will be changing their cannabis laws. Please stay tuned.

They Said It On Marijuana, Quotable Saturday, Part LX

Posted in Advocacy
Kelly Clarkson is asking the right questions on cannabis legalization

Kelly Clarkson is asking the right questions on cannabis legalization

“Original American Idol” singer Kelly Clarkson wonders aloud in a recent Rolling Stone interview why marijuana is illegal while scotch and Xanax are not:

I’m not even a pothead, I just think it’s funny that we legalize something as destructive as alcohol or pills and not that. Don’t get me wrong, I love me some alcohol, but I don’t know anybody in rehab because of pot. And I know a ton of people that have died either from liver cancer or behind the wheel. We legalize things that are so disturbing for our bodies, but one that’s completely fine, we say, “No, that’s bad for you.” I’m like, “Okay, enjoy your scotch. Enjoy your Xanax.”

Kelly, we wonder the same thing.

Nevada Marijuana Update: Dispensaries For Sale, And More!

Posted in Legal Issues, Licensing, Medical Cannabis, Nevada

Last week the Nevada Senate Committee on Finance unanimously voted to approve SB276 to reallocate dispensary licenses initially meant for rural counties, but never claimed. In total, there are eight licenses potentially up for grabs in Las Vegas and Three in the Reno area.Nevada may soon allow buying and selling marijuana businesses

Although not previously reported, the bill also includes a provision that will allow for the transfer of dispensary licenses. Nevada previously did not permit transferring a cannabis license, so this is a major development that happened to be added to the bill by amendment — and partially only by oral amendment. Further, a licensee will be permitted to move their location so long as it stays within the same local governing authority, and after a public hearing. These amendments allow dispensary owners to sell their businesses and even allow the purchasers to move those businesses. This creates a substantial value for licenses which were previously worthless to anyone other than the holder.

Contrary to some reports and to what so many in the industry are saying here in Nevada, there will be no new application window for those who did not previously apply for licenses. Instead, the bill will utilize the rankings from 2014’s application process to determine who the lucky new 11 licensees will be. The determination may be complicated by pending litigation regarding whether companies who got state approval, but not local approval, should be granted licenses at all. But generally, we should expect these new licensees to come from the list of those who previously applied for a Nevada cannabis license, but were not chosen to receive one.

The Nevada legislature will only be meeting until June 1, 2015, so expect some news on this bill in the coming days. SB276 must still make it through the full Nevada Senate, Assembly Committee and full Nevada Assembly before it can be signed into law. That’s a lot to do in a couple weeks, but Nevada moves quickly, and we are optimistic that the bill will make it through. If it does, we expect to be seeing a number of buy-sell transactions involving Nevada marijuana licenses, just as we have seen in other states that allow this.

For some of the issues involved in buying and selling of a cannabis license, check out Buying and Selling Marijuana Business Licenses and Buying A Cannabis Business? Be Careful.

Marijuana Legalization Requires Business

Posted in Advocacy, Federal law and policy

The current state of affairs in DC shows how short-sighted lawmakers can be. Here’s a recap: DC voters approved an initiative last November that legalized limited possession and growing of marijuana. The initiative did not have any provisions authorizing businesses to grow and sell marijuana, so those actions still defaulted to the old legal regime. DC’s city government understood that this was an issue. As one individual puts it in this article, “It’s the dealer-protection act of 2015.” So, the mayor and city council got to work on some legislation of their own to create a regulated commercial market place.

Marijuana is not going away. So deal with it.

Marijuana is not going away. So deal with it.

Congress, as happens far too often, decided to muck things up without considering the consequences. As a sidebar, the Constitution’s treatment of DC governance is one of the most asinine parts of that document. Of course people were going to live there. By disallowing congressional representation and authorizing Congress to veto any actions by DC at the city level, our framers subjected its citizens to a type of tyranny with which no other U.S. city must deal.

Congress prohibited DC from using any money to create and implement a system where marijuana could be taxed and sold. There was a lot of back and forth about whether Congress could block legalization outright, but by choosing to work via spending powers, Congress was not able to go that far.

Maryland Republican Representative Andy Harris spearheaded the campaign to stop DC from implementing its legalization regime and business reforms. Who knows why he decided to care about this. What is truly incredible is that, according to the Post, “[He] blamed city leaders, insisting that they should have forbidden possession when he and other lawmakers prevented Washington from creating a controlled marketplace. . . . There’s no question that demand will go up, and there’s no legal source of supply. . . . Clearly this was not thought out rationally by the city government, which chose to go forward with legalization without regulation.”

What a load of crap.

Harris is blaming city leaders for moving forward with unregulated legal regulation, when he is the one who made it unregulated. It’s like he just expected the city to fold. In reality, the voters demanded that DC move forward with regulation, and the mayor and council tried to do it in a smarter way. Representative Harris, on the other hand, prefers that marijuana be bought and sold illegally.

And let’s remember that illegal markets are bad. Not everyone is buying marijuana from a friendly college kid in his dorm room. Black markets can and do generate income for organized crime in the U.S. and abroad. They lead to violence and more crime. A black market dealer doesn’t have the protection of law enforcement if he gets robbed, so he has to learn to protect himself against potential threats. In a regulated business marketplace, he could use insurance money to replace lost inventory and could work with police to investigate the crime. In the black market, the dealer has to take matters into his own hands. This is why states have been legalizing.

So, Andy Harris and his Congressional allies, we really do blame you for gumming up the works in DC. It’s not the mayor’s responsibility to back down when you succeed in ruining a system that can improve things there. What most people are really starting to comprehend is that we are not having a debate about having marijuana in our communities or not. Marijuana is already there and it will be there forever. We are debating whether we want marijuana to be sold in a legal regulated businesses or in a pure black market. The DC voters are for the former, and Andy Harris’s team is for the black market. Let’s hope they change their minds.

Containing Cannabis Within State Lines: Who’s Responsible?

Posted in Advocacy, Federal law and policy

Marijuana Debate

I was on Al Jazeera America’s Inside Story last night to talk about the “Business of Pot.” My co-panelist was ex-DEA agent Michael Vigil. And though this TV interview didn’t amount to a Nancy Grace-type debate, Mr. Vigil and I disagreed about almost everything when it comes to marijuana and its legalization.

One unsurprising but particular point of contention was that cannabis in legalized states is leaking into states where marijuana prohibition remains strong. Mr. Vigil’s position was that the marijuana businesses themselves are responsible for this leakage. To the contrary, I argued that marijuana businesses are highly regulated and responsible, and that the states need to educate consumers on how to responsibly treat cannabis when it comes to this kind of diversion. Ray Suarez, the host of Inside Story, pointed out that much of this diversion is from consumers illegally transporting cannabis across state lines. Mr. Vigil vehemently denied this without any real proof in support of his contentions. But this conversation ultimately begs the question: what is being done to ensure state-legal cannabis stays within state borders? And where does the buck stop regarding customers who engage in interstate drug trafficking? Most importantly, do the Feds care about this kind of activity?

The 2013 U.S. Department of Justice’s memo focuses on the activities of states and cannabis businesses. That memo prioritizes the federal government’s enforcement goals for cannabis and diversion of product is on that list. Clearly, when states implement traceability and product tracking requirements, it is in an effort to satisfy that federal enforcement priority. And states and marijuana businesses take that responsibility seriously, as evidenced by the volumes of state regulation dedicated to traceability, the massive investment of money and manpower that goes into tracking software to ensure business tracking capabilities, and the fact that states work so hard to limit the marijuana industry only to responsible businesspeople. One would be hard-pressed to find a legal marijuana business in either Washington or Colorado that cannot tell you from exactly where it got its cannabis and to exactly whom it went at its point of sale.

Interestingly, the DOJ’s 2013 memo does not mention any enforcement priorities regarding consumer conduct. Moreover, the DOJ has pretty much said it will not go after legitimate patients or consumers in legal marijuana states. Really, only state and local law enforcement are keeping their eye on consumers and their cannabis activity in legal states, and most of those states have made cannabis consumer enforcement one of their lowest enforcement priorities.

The issue of containing cannabis within state lines forms the basis for the lawsuit brought by Nebraska and Oklahoma against Colorado in an attempt to shutter Colorado’s adult use cannabis program. That lawsuit is pending before the U.S. Supreme Court and it likely will definitively end the debate between Mr. Vigil and me. If, as expected, Colorado prevails, we will have a Supreme Court ruling essentially saying that the legalized states (or at least Colorado) are making sufficient efforts to prevent leakage into the non-legalized states and that the leakage we are seeing is not an overwhelming priority for the federal government. 

Cannabis Advertising Lawsuits: Coming Soon To A Court Near You

Posted in Business Basics, Legal Issues
False advertising claims against cannabis businesses will be coming soon to a court near you. Art by AccordingtoSheBlum (www.accordingtosheblum.deviantart.com)

False advertising claims against cannabis businesses will be coming soon to a court near you. Art by AccordingtoSheBlum (www.accordingtosheblum.deviantart.com)

In Miller/Coors Sings the Blues over Craft Beer Lawsuit, All About Advertising Law discusses a recent deceptive advertising lawsuit against Miller/Coors. The lawsuit alleges Miller/Coors seeks to mislead the public into believing that its Blue Moon beer is a “craft” beer, in part through its intentional omission of the Miller/Coors name from product labels. The article discusses how the “alcohol industry has been a prime target” for such lawsuits, noting cases against Tito’s Handmade Vodka, Maker’s Mark, Jim Beam and Templeton Rye.

The cannabis industry is next.

Cannabis companies and their brands are coming under the same sort of competitive pressures faced by the alcohol industry. In newly legalized states, companies are fighting to establish cannabis brands they hope will dominate the industry for years to come. Perhaps most importantly, the brand you build up now in states like Washington and Oregon could — if you play your cards correctly — propel your business (and the brand reputation you have already developed) into states like New York, Texas, Illinois, Ohio, and California when they fully legalize.

On the flip side, however, mistakes you make now could jeopardize your future branding efforts or even knock you entirely out of the business.

We have already seen instances of companies suing cannabis companies for brand abuse. Hershey’s, for example, initiated multiple lawsuits against companies that branded cannabis-infused chocolate products with names such as “Mr. Dankbar,” “Reefer’s Peanut Butter Cups,” “Hasheath,” and “Ganja Joy,” all meant to parody their non-cannabis Hershey’s counterpart. This type of branding constitutes trademark infringement, as well as tarnishment of the more famous marks.

Unsurprisingly, given the infancy of the legal cannabis industry, we have yet to see any examples of cannabis-related advertising lawsuits. Marijuana businesses, however, are a prime target for these types of lawsuits. It’s only a matter of time and the following are some examples where we see eventual lawsuits.

We are aware of a number of cannabis businesses that tout their cannabis as “organic.” But as we noted in Organic Marijuana: Not Exactly, this presents a big issue:

“There is just one problem with this [listing your cannabis as ‘organic’]. One big problem. Doing so is illegal under federal law. I repeat, it is illegal under federal law to label or describe marijuana as organic.”

Labeling a product as “organic” generally requires a specific certification, and that certification is regulated by the U.S. Department of Agriculture. Congress set forth general organic principles in the Organic Foods Production Act, and the USDA defines specific organic standards. Though alternative certifications exist for marijuana and marijuana products, none are approved or regulated by the USDA, and they therefore do not create an official organic certification.

Any marijuana company that claims its cannabis is organic is opening itself up to a deceptive advertising lawsuit.

We also have real concerns about marijuana businesses that make excessive or inaccurate claims about their marijuana. A marijuana producer that claims its particular strain cures cancer could easily be sued when that claim falls short. A dispensary that wrongly advises a customer that a particular strain is great for sleeping (when it actually is not) could be sued for deception. It goes on and on.

Right now, with our industry in its legal infancy and with few super wealthy cannabis companies, the odds of such lawsuits are still relatively low – though considerably higher than zero. But that is going to change, and for any cannabis business with growth aspirations, now would be the best time for you to review what you are saying, confirm it all as accurate, and map out internal rules and regulations going forward. If you are a producer, you should be talking with the dispensaries that sell your products to make sure that they are not making any promises that you or your products cannot keep, because if they are and something goes wrong, you will almost certainly be a named defendant right with them.

As the cannabis industry grows and gains legitimacy, cannabis business owners will increasingly need to play by the same rules as all other legal businesses. When it comes to branding and marketing, this means that you too need to be certain not to make false or misleading statements in your advertising or on your packaging, and be certain that your brand does not infringe on the trademarks of another company.

Marijuana Compacts and Washington Tribes: Will There Be Cannabis?

Posted in Federal law and policy, Native American Tribes
This map is amazing. It was done by Aaron Carapella, a Cherokee, and it maps the Native American Nations as of 1491. For more on this go to http://bit.ly/1JQe0BG

This map was done by Aaron Carapella, a Cherokee. It is of the Native American Nations as of 1491.                                                              For more on this go to http://bit.ly/1JQe0BG

Governor Inslee signed HB 2000 into law earlier this month. We wrote about it before. In short, it authorizes the governor to enter into compacts with tribal governments regarding regulation of marijuana businesses, enforcement of law, taxation, dispute resolution, and a few other issues. Now that it has been signed, the big question is whether we will actually see tribes in Washington State enter into these agreements with the state.

A number of tribes in Washington are exploring the possibility of getting into the marijuana business. It appears that the Department of Justice will treat them a lot like they treat states — as long as the tribes regulate cannabis distribution and do not violate federal enforcement priorities, federal enforcement of marijuana prohibition is unlikely. None of those tribes are actively distributing marijuana under their own regulatory regime yet, but it is only a matter of time.

The relationship between tribes and the state is complicated, as tribes are sovereign, but they also are subject to continued attacks on their sovereignty. When it comes to law enforcement, gaming regulation, and their relationship with the federal government, tribal sovereignty is regularly threatened by state action. A lot of the same criticisms that we have made about the DEA apply to government agencies in general. Once you give authority to an institution, that institution seeks to maximize its authority and extend its reach. When its authority is challenged, the institution will work even harder to seek ways to further legitimize and expand its scope. This expansion, along with removing as many human elements as possible from the process, is the nature of bureaucracy.

So, we get why the state would want to enter into these compacts, but does it make sense for the tribes? There are real pros and cons. The tribal business would gain access to licensed Washington marijuana businesses. That means that they could potentially wholesale to licensed producers, processors, and retailers. This is an important consideration, as a lot of tribal land in Washington State is not located in or even near population centers, and those tribes may not be able to support their own retail operations. These tribes that are out in the middle of nowhere could do real business as wholesalers, but would struggle if they needed to generate a lot of foot traffic. Additionally, entering into compacts can be a political move. Tribes can also have gaming and cigarette compacts with the state, and a concession on marijuana may lead to gains in other tribal business ventures.

The biggest negative is that HB 2000 mandates that any tribe entering into a compact with the state must tax its marijuana sales at the same excise tax rate as the state imposes on licensed marijuana producers, processors, and retailers. Part of the reason tribes would want to involve themselves in the marijuana business is that they would be able to undercut the state system by implementing a lower tax rate. Though there is an exemption for sales to tribal members, tribes entering into the retail market would want to offer lower tax rates to non-tribal members as well, in an effort to encourage customers to go out of their way to purchase from the tribe. Tribes that directly operate retail businesses could maybe avoid the negative implications of this tax by deciding to sell product at a steep discount, as tribal marijuana business income and tribal tax revenue would both ultimately end up benefitting the tribal government. However, in existing cigarette tax compacts, there are rules that tax revenue not be used to subsidize cigarette retailers, and similar language would be likely in any marijuana compact.

Additionally, tribes wanting to maintain sovereignty are rightfully distrustful of entering into these agreements with the state, especially if the state tried to mandate that the Liquor and Cannabis Board (still getting used to that new name) enforcement officers be allowed to enter onto tribal land and inspect tribal businesses.

We do not yet know if the state is going to push for that type of enforcement authority, but the first negotiations will certainly be interesting. It is likely that Governor Inslee would delegate negotiating authority to the Liquor and Cannabis Board for any tribal compact. For now, we’ll wait and see which, if any, tribe in Washington decides to enter into negotiations.

On June 4, in Green Bay, Wisconsin, we will be putting on a Tribal Marijuana Workshop at which we will — on a very practical level — be discussing issues like this. This workshop is being put on by our group and by Robert Odawi Porter, one of the top tribal lawyers in the country. We worked with Robert on our last Tribal Cannabis event, at the Tulalip Resort and Casino and that event was a huge success, with more than 450 people attending. For more on our previous event (and a taste of our upcoming one), please check out the following news stories:

 

Oregon Cannabis Laws: The War Between Recreational And Medical

Posted in Medical Cannabis, Oregon, Recreational Marijuana

When I-502 proponents were campaigning in Washington in 2012, many of them promised that I-502 would not change current medical cannabis laws. Though I-502 itself did not directly change Washington’s MMJ laws (it did not even mention those laws in its text), the overall effect of I-502 inevitably forced the state legislature to essentially eliminate Washington’s then existing medical marijuana laws. The Washington legislature simply could not tolerate a loosely-regulated medical marijuana system competing with and undermining the state’s strictly regulated  I-502 recreational industry.

Oregon's new civil war is between recreational and medical cannabis

Oregon’s new civil war is between recreational and medical cannabis.

We can already see the same politics, logistical issues, and competition concerns swirling in Oregon between the Oregon Medical Marijuana Program (OMMP), Measure 91, and the legislature. Though Measure 91, just like I-502, does nothing to explicitly change the OMMP, Oregon lawmakers are already recognizing that the OMMP and Oregon’s medical marijuana laws apparently need overhauling to ensure a uniform and better controlled state-wide marijuana system. Though not as dramatic as Washington’s recent passage of SB 5052, the Oregon legislature is getting closer to a medical marijuana facelift.

And here is why:

  • The OMMP probably does not adhere to the August 2013 Cole Memo. The Cole Memo prioritizes the Department of Justice’s medical and recreational marijuana enforcement goals, ranging from preventing marijuana diversion to keeping cannabis out of the hands of minors. For states to have a good chance of keeping the federal government (the DEA, the Justice Department, etc.) from overly interfering with their cannabis legalization regime, they must abide by the Cole Memo. Therefore, the Cole Memo’s eight enforcement priorities should be at the forefront of any state marijuana laws or rule making, and all states’ marijuana laws and rules passed since 2012 have been sensitive to the Cole Memo. To the OMMP’s credit, medical marijuana existed in Oregon long before the Cole Memo issued. Nonetheless, for the safety and security of all OMMP participants, we expect the Oregon legislature will revise the OMMP to bring it in line with the Cole Memo.
  • The Oregon Liquor Control Commission (OLCC) has already made clear that OMMP dispensaries will not be allowed to distribute adult use cannabis under Measure 91 unless they adhere to the same traceability and tracking requirements as Measure 91 storefronts. This would mean that Oregon will have OMMP dispensaries distributing just medical marijuana under very different operational standards than recreational dispensaries operating under Measure 91. This will almost certainly mean that the recreational industry will bear higher costs from having to comply with robust recreational laws and rules created by the OLCC. Consequently, Measure 91 stakeholders may also want the legislature to revise the OMMP to ensure fair play.
  • The OMMP only somewhat regulates medical dispensaries and it does not regulate manufacturing and cultivation. The OLCC will regulate Measure 91 growers and manufacturers but no Oregon agency directly regulates or polices medical cannabis cultivators and manufacturers. Though medical cannabis cultivators and manufacturers may (if they choose to do so) register with the state, there is no state regulatory oversight beyond that. In other words, under existing Oregon law, the State does not know who is cultivating or where the cultivated cannabis is going. Recreational cultivators and manufacturers operating under Measure 91 will be required to register with the State and to succumb to rigorous state law standards and they will no doubt quickly demand that the State require the same of all medical cannabis cultivators and manufacturers.
  • Oregon’s legislature already took a serious shot at overhauling MMJ by nearly passing Senate Bill 844. SB 844 started out as a “technical fix” for Measure 91 but quickly morphed into a bill would have made some significant changes to the OMMP, including reducing patient plant possession, severely restricting medical grow locations, and increasing state monitoring and policing of those grows to prevent cannabis diversions into the illegal market. SB 844 also would have allowed Oregon cities and counties to ban medical cannabis grows and businesses outright. The ban issue created so much contention among lawmakers that the bill eventually stalled — at least for now.

Like it or not, when a state moves forward with a heavily regulated marijuana regime, any existing regime that is not nearly identical to the new regime will come under serious scrutiny. But by the same token, states need to be sensitive to medical cannabis patients and their specific needs and not simply toss those people overboard for the sake of strict regulation or tax revenue generation. Though we are confident Oregon will not lose its medical marijuana program entirely, we have our doubts about the OMMP’s continued viability.

They Said It On Marijuana, Quotable Saturday, Part LIX

Posted in Advocacy
Penn Jillette thinks it's crazy to lock people up for pot.

Penn Jillette thinks it’s crazy to lock people up for pot.

Do we believe, even for a second, that if Obama had been busted for marijuana — under the laws that he condones — would his life have been better? If Obama had been caught with the marijuana that he says he uses, and ‘maybe a little blow’… if he had been busted under his laws, he would have done hard f*cking time. And if he had done time in prison, time in federal prison, time for his ‘weed’ and ‘a little blow,’ he would not be President of the United States of America. He would not have gone to his fancy-a** college, he would not have sold books that sold millions and millions of copies and made millions and millions of dollars, he would not have a beautiful, smart wife, he would not have a great job. He would have been in f*cking prison, and it’s not a god damn joke. People who smoke marijuana must be set free. It is insane to lock people up.

Penn Jillette

Who doesn’t love Penn Jillette? The guy is funny. The guy is smart. The guy is honest.

So when Penn Jillette rants about imprisoning people for pot, we should listen, especially because he is right. It isn’t fair to lock people up for marijuana, especially now when it is legal in some states but not in others.

Can’t we all just agree on this?

President Obama Fills Top DEA Post: He Should Have Eliminated The DEA Entirely.

Posted in Advocacy, Federal law and policy
We're from the DEA and we're here to help you. Yeah, right.

We’re from the DEA and we’re here to help you. Yeah, right.

This week, Barack Obama filled the top spot at the Drug Enforcement Administration after former Administrator Michele Leonhart stepped down last month. Before we take a look at who Obama tapped to be his new DEA chief, let’s pause to reflect on some of the highlights of the outgoing Administrator’s tenure.

Leonhart’s time as the DEA chief was disastrous, to put it lightly. Appointed by Bush and held over by the Obama Administration, she was initially thrust into the public eye after her awkward colloquy with Rep. Jared Polis (D-CO) before the House Judiciary Committee, during which he tried unsuccessfully to get Leonhart to admit heroin was more harmful than cannabis. Rep. Steve Cohen (D-TN) also grilled her in the same Subcommittee hearing, making her look as clueless, ineffectual, and embarrassing as the drug policies she had been tasked with carrying out.

But looking and being foolish during her Congressional testimony was not what did her in — though it should have. Despite managing to humiliate herself yet again before Congress by stating that the lowest point in 33 her years of service with the DEA was when Congress flew a hemp-woven flag over the capitol on the Fourth of July, arguing that cannabis prohibition is justified because marijuana might kill puppies, and publicly denouncing President Obama’s increasingly moderate stance on cannabis prohibition, she kept her job.

Her public gaffes on cannabis policy were probably the least scandalous of her tenure. Under her leadership, the DEA has recklessly flouted the limits of its authority, engaging in warrantless surveillance with the NSA and then lying about it to skirt the Fourth Amendment. It has colluded with Mexican drug cartels to smuggle assault weapons and launder drug money. It also nearly killed a suspect in custody by locking him in a room, forgetting to feed him for five days, and forcing him to survive by drinking his own urine (the agency settled the lawsuit for $4.1 million).

Astonishingly, none of these oversights cost Leonhart her job. What ultimately prompted her resignation was a DOJ Report detailing how DEA Special Agents were hosting, at taxpayer-funded apartments, orgies with prostitutes whose services were paid for by the drug cartels they were policing. Usually congressional hearings are uneventful, but the House Judiciary Committee members were just beside themselves over her lapse in leadership. It’s possible her resignation wasn’t entirely voluntary, but she should have been booted long before given the chance to walk away on her own volition.

In her stead President Obama has appointed Chuck Rosenberg as interim DEA Administrator. He is an internal hire, having worked for the Department of Justice for many years as the U.S. Attorney for the Eastern District of Virginia, and most recently as the FBI’s Chief of Staff.

Our initial impressions are cautiously optimistic. There are a few things we like about him. First, he is a lawyer and public administrator by training, not a cop, having earned his Juris Doctor and Masters of Public Policy at the University of Virginia and Harvard Kennedy School, respectively. Unlike Leonhart, his previous experience was not focused primarily on drug interdiction, but instead on financial crimes and counterterrorism cases. He has handled a number of high-profile prosecutions, Zacarias Moussaoui, John Walker LindhMichael Vick. There is a lot of cleaning up to do at his agency, and it is not clear how high state-regulated cannabis ranks on his list of priorities, at least right away. This guy has demonstrated that he likes going after the biggest of fish, and there isn’t as much political backwind in prosecuting pot cases as there is in going after terrorists and NFL stars turned animal abusers.

We say cautiously optimistic because, at heart, he is a former prosecutor, who are among the few types of lawyers we know who typically oppose cannabis legalization. The FBI had its hands in the same dirty nether-regions of the national security apparatus as the DEA (and NSA, CIA, etc.), so he doesn’t have the cleanest hands, generally speaking. But as far as cannabis goes, the jury is out.

But no matter how good Rosenberg may be, we see the DEA as being corrupt/corrupted to its core and there is no way any one person or even team of people can clean it up. Its agents have been — for the most part — wound up to view marijuana as bad and trying to teach those dogs new tricks is almost certainly going to be impossible. We once again call for Disbanding the DEA. Its core is rotten throughout and there is no reason to believe this can or will ever change, no matter what happens with one or two people at its top.

This is NOT a radical position, if anything it leans towards conservatism in that it stems from our belief that a government agency once wound up to do one thing cannot unwind and must be eliminated. We stand by the following argument we made previously in our post Disband the DEA:

 

The DEA is a bit of an odd duck. It is a law enforcement agency like the FBI and the Bureau of Alcohol, Tobacco, and Firearms. It also licenses physicians to prescribe controlled substances, and it is responsible for approving requests by research institutions to study drugs. It even publishes its own propaganda. This all came to pass when Richard Nixon created the DEA to unify federal (anti) drug policy in 1973. Based on the DEA’s sordid history, it does not seem like we will ever see much good come out of this agency. Dan Riffle of the Marijuana Policy Project has suggested either not replacing Leonhart or bringing on an administrator with a public health background to begin reforming the DEA into a public health and science oriented agency. The problem is that the DEA’s original mandate, though drafted by President Nixon, was approved by Congress. The smarter policy would be to disband the DEA, putting all drug research and licensing into the hands of the FDA, and giving drug law enforcement to the FBI. Maybe then the propaganda would stop, as those agencies have reasons to exist beyond the drug war.

President Obama ran and was elected by claiming he would bring about “change.” Disbanding the DEA is just one of the changes that he should enact before his term expires.

Do you agree?