Oaksterdam Raid Last Gasp in Federal Pot Prohibition?

Posted April 10, 2012 in Criminal Law by

Last week, federal agents raided Oaksterdam University in Oakland, a school for growing and selling marijuana that prepares students to enter the lucrative California medical pot trade. Part of a larger crackdown on large-scale drug facilities, the raid illustrates the tensions that exist between states pushing legalization of pot for medical uses and beyond while the federal government clings to a prohibition model.

  • Federal law supercedes state law, when the feds choose to enforce it
  • Pot arrests clog criminal justice system and put high burden on taxpayers
  • Full legalization in Washington and Colorado could test federal will.


Ubiquitous Green Leaf

Dangerous drug, medicine, recreational tool or something in between? Despite decades of demonization and prohibition by the United States government, marijuana remains ubiquitous in the country’s culture, for better or for worse. People are using it, states are legalizing it to varying degrees, but be wary —  federal law bans possession, sale or cultivation of any amount of pot.

A 2010 Health and Human Services study estimated 17.4 million Americans were current pot users. And according to FBI data, 853,000 of them were arrested in 2010 for marijuana offenses, the vast majority for simple possession– an estimated 5.7 percent of all arrests in the nation.

Sick of the costs of enforcing strict bans and cognizant of potential benefits of weed for people suffering from chronic pain and serious illness, some states are trying a different tack. Sixteen of them have legalized medical marijuana in some form, and 13 have decriminalized possession of a small amount of the drug for any purposes, imposing civil fines instead of arrest and incarceration. However, that doesn’t mean you can’t still be locked up by the feds, as last week’s raid in Oaksterdam demonstrated.

“We’re in a grey zone with marijuana, especially with medical usage,” says Keith Stroup, founder and legal counsel for the marijuana advocacy group NORML. “It’s not totally legal, but it’s not totally illegal either.”


This is a Raid!

Uncle Sam can’t force states to impose or enforce any particular drug laws, but can send in their own agents when a violation of federal law comes to their attention. “What it involves is an understanding of when the Supremacy Clause kicks in,” says Stroup. “The federal government must point to a particular provision in the Constitution to justify legislation. Generally it’s the Commerce Clause they rely on for most criminal laws.”

Keith Stroup

The result has been a weird limbo for the medical marijuana industry, where growers and distributors operate in total compliance with their state laws, but in constant danger that the F.B.I. could come knocking on their door. Although the Obama administration initially indicated that it would allow states to exercise their own discretion on medical marijuana, in the last year the feds have reversed course and stepped up enforcement against dispensaries and other facilities, with the Oaksterdam shutdown only the most recent example.

The practical takeaway for operators would be to respect federal power and not give them a good reason to come after you. “When you’re operating in a grey market, I would strongly recommend you not attempt to be the Walmart of medical marijuana dispensaries,” Stroup says. “It doesn’t make sense to draw that much attention to yourself. Those people willing to remain modest in size will probably be left alone by the federal government, but nobody knows that for certain.”


Legalize It

The reach and will of the federal government to continue its crusade against weed could be sharply tested next fall, when initiatives to completely legalize marijuana cultivation and sale, eliminating all penalties, will be on statewide ballots in Washington and Colorado.

“There is no requirement that a state mimic federal laws,” says the NORML founder. “The federal law would still be in place but the state can just ignore the whole field of marijuana.”

However, state laws can be found in a “positive conflict” by licensing behavior that is outlawed nationally– taxing and regulating pot sales, for example. “If the state of Washington wishes to eliminate all criminal penalties for possession and use of marijuana, they can do that,” Stroup says. “If they elect to go a step further, legalize, regulate and tax marijuana, along the lines of the alcohol model . . .  it appears to be a positive conflict with federal law. That opens up the possibility for the federal government, if they choose, to go into court and seek an injunction under the Supremacy Clause.”

The result would be a de-facto marijuana free zone, where sale and possession go mostly unpunished, since the federal government would never have the resources to go after all the small-time sellers and users, but the state wouldn’t be allowed to regulate or collect taxes. The other option is for the feds to not file an injunction against state regulation measures and let them tax away, but that would essentially be admitting defeat on pot prohibition.


Times They Are a-Changin’

The crackdowns in California notwithstanding, most signs point to continued relaxation of pot laws. Previous state attempts to legalize it failed in California in 2010 and Colorado in 2006, but with public opinion polls steadily shifting in subsequent years, the country could be near a tipping point.

Even for people who don’t enjoy the drug on its merits or believe in the efficacy of medical use, for practical reasons alone it may be time for a change. Exploding prison populations since 1980 are mostly due to the war on drugs, and marijuana arrests in particular. Marijuana arrests cost $10.8 billion to state and local governments alone in 2006, according to one study. And there’s a question of fairness, with disproportionate arrests and sentencing for minority users and sellers despite evidence showing that white people smoke at similar or even greater rates than blacks. Even conservative evangelist Pat Robertson is now calling for looser drug laws due to the strains pot arrests put on the criminal justice system.

Will 2012 be the year the dominoes start to fall? Stay tuned.

Tagged as: , , , , , , , ,