Today, Washington state’s marijuana legalization initiative officially takes effect.  It remains an open question what the feds will do about it, if anything.  The United States Attorney’s Office for the Western District of Washington released the following statement reminding citizens of that state that possession and distribution of marijuana remain illegal under the federal Controlled Substances Act:

“The Department of Justice is reviewing the legalization initiatives recently passed in Colorado and Washington State. The Department’s responsibility to enforce the Controlled Substances Act remains unchanged. Neither States nor the Executive branch can nullify a statute passed by Congress. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. Regardless of any changes in state law, including the change that will go into effect on December 6th in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law. Members of the public are also advised to remember that it remains against federal law to bring any amount of marijuana onto federal property, including all federal buildings, national parks and forests, military installations, and courthouses.”

As couple of weeks ago, a post on a pro-legalization site reported that the governors of Washington and Colorado had asked DOJ directly whether they planned to block the legalization laws and had not received any answer.  Seems DOJ’s still mulling.  But reading between the lines of the W.D.Wa. statement, there’s nothing to indicate that the feds plan to rush out and start raiding tomorrow, or run to court to enjoin implementation.  They seem almost sheepish, as if they’re embarrassed to have to remind people that the law is still the law.  Congress made marijuana illegal and there’s not much the executive branch can do about it, they seem to say, so don’t bring marijuana onto federal property or we might have to arrest you.  Maybe it’s as simple as the fact that there are bigger priorities in Washington right now, this is a politically sensitive issue, and nobody’s quite figured out how to deal with it.

But there’s another explanation. It’s important to note that, while the statement reads as somewhat conciliatory, it also appears to be directed at users rather than growers or distributors. This is a critical distinction in thinking about federal enforcement. The Washington and Colorado laws both set the quantity for legal possession at one ounce. It would actually represent a significant change in DOJ policy if federal authorities started prosecuting individual users for possession of an ounce or less. Yes, simple possession is on the books as a federal crime. But the U.S. Attorneys’ offices’ intake guidelines are set at distribution quantities. The Justice Department simply does not prosecute cases involving small personal use quantities, and never has. Individual U.S. Attorneys’ offices may differ on what qualifies as federal weight, but an ounce has never represented federal weight, and such small cases routinely get directed to the states for prosecution anyway. In Washington, as of today, if the feds kick a possession charge to the state, it will no longer get prosecuted. This suggests there is plenty of room for compromise between DOJ and the states on possession charges. Manufacture and distribution, though — not so much.