Those who have been following the developments in marijuana law in recent years know that there has been somewhat of an uncertain state of affairs with respect to federal drug law enforcement. Although the Department of Justice had, under President Obama, been working under a policy of leaving alone those who followed state marijuana laws, federal laws criminalizing marijuana have remained on the books.

While the Obama administration allowed the legal sale of marijuana in 27 states, for both medical and recreational purposes, marijuana is still listed as a Schedule 1 controlled substance. Possession and distribution of the drug is a federal felony. Defense attorneys, prosecutors, and legal commentators are all unclear at present what direct the Trump administration will take on the issue of marijuana. 

A number of issues are implicated in the discussion of marijuana law, including tax revenue, public safety, the government’s role in regulating vices, racial equality, and prison populations. At the heart of the discussion is the question of the best way to address the fact that marijuana has come into widespread use and many states have carved out a place for its use, notwithstanding federal law.  

Some legal commentators say the best way to address the situation is to repeal the federal law. Others advocate the use of prosecutorial discretion based on limited enforcement resources and the use of the presidential powers of pardon and commutation to address sentencing inequities. How potential issues related to equal protection, respect for the law, government efficiency, and protection of criminal defense attorneys from professional discipline are adequately addressed by a selective enforcement approach isn’t entirely clear. Neither is it clear, though, that the Trump administration would be open to a repeal of federal marijuana criminal laws.

We’ll continue looking at this issue in our next post.