Kevin Sali: Marijuana and Prosecutorial Discretion

Wednesday, June 24, 2015

Kevin Sali, GoLocalPDX MINDSETTER™

The recent expansion of marijuana legalization in Oregon has been hailed as a major change, and many Oregonians are enthusiastically preparing to take advantage of the new legal framework. I’m far from convinced that that’s a good idea, and the reasons why tell us a lot about the ways our laws are enforced.

It’s arguably misleading to call what Oregon has done “legalization.” As long as marijuana remains illegal under federal law, Oregon doesn’t have the power to “legalize” it—that is, to make it legal for someone in Oregon to make, sell or use it. The most Oregon can do is decide that certain marijuana offenses will no longer be crimes under Oregon law – that is, that the State of Oregon won’t prosecute those offenses anymore.

Federal prosecutors are unaffected by the change in Oregon law, and can continue to prosecute Oregonians for marijuana-related offenses in federal courts as they see fit. These prosecutors have the power not only to send people to prison, but also to seize money, cars, homes, and other property connected to marijuana distribution. And this is where things get complicated and—for those concerned with the rule of law—disturbing.

The United States Department of Justice has signaled that it’s not going to focus on ordinary marijuana offenses where the conduct complies with state law in a legalizing state. These signals, however, are extremely vague, peppered with caveats stating that prosecutions in such states may indeed be appropriate in certain cases. They’re also entirely non-binding. They have no legal effect whatsoever, and the Department or any individual prosecutor could change course in an instant and decide to prosecute an Oregonian citizen or company in the marijuana business.

This type of policy is considered to be a type of “prosecutorial discretion,” which refers to a law enforcement body’s ability to decide which legal violations it will actually prosecute. That discretion has been a part of every law enforcement system, and is not in itself objectionable. The way it has evolved in the American system, however, has led to a troubling change in the relationship between the government and its citizens.

There are two basic ways to structure a criminal justice system in a democracy. One is for the citizens, through their legislators, to define criminal offenses in clear terms, with the expectation that those who are caught crossing the resulting lines will be prosecuted. This has the advantages of clarity and predictability. The downside of this approach, admittedly, is that it leaves openings for the crafty to come up with strategies—the proverbial “loopholes” and “technicalities”—to avoid prosecution by staying just inside the legal lines, while still causing many of the problems the laws attempt to address.

For those who find this unacceptable, the response is the second model of criminal law enforcement. In this model—which increasingly describes the American system—laws are drawn much more broadly to ensure that anyone who is doing something that “seems” or “ought to be” illegal can in fact be prosecuted. Here, the risk is that that breadth will necessarily sweep in people and cases that we don’t really want to target. The supposed safeguard is “prosecutorial discretion”—the idea that fair-minded prosecutors will use their own judgment to decide who, out of the vast class of potential defendants, really should be targeted.

However that second model may sound in theory, in practice it has proven to be deeply troublesome. First, of course, this vast discretionary power offers opportunities for unscrupulous prosecutors to target people for inappropriate reasons. It’s widely acknowledged in the legal community that a prosecutor who really wants to charge someone will always be able to find something within the vast array of broad criminal statutes that can “stick.”

But even where prosecutors do their best to be fair, the discretion-heavy system is troublesome. It largely transfers to prosecutors the determination of what’s “really” criminal—a determination that in a democracy should be the responsibility of elected legislators.

And it fundamentally transforms the relationship between the individual citizen and the government. In a system with clear, consistently enforced laws, citizens can decide whether or not to abide by their society’s rules. If they don’t, they accept the risks they’re taking; if they do, they can hope to be left alone by the authorities, however those authorities might “feel” about their conduct.

By contrast, in a discretion-based enforcement regime, citizens know they have to stay on government officials’ “good sides,” and the fear of arbitrary or targeted enforcement can lead to attitudes of servility and submissiveness that are out of place in a free society. (Imagine a stopped driver groveling before a police officer to avoid a ticket—now expand that image to cover all of the areas in which laws govern our conduct.)

The heavy use of prosecutorial discretion shows up in several areas besides marijuana—for example, in immigration law, where there are deep divisions regarding whether we want to see existing federal law enforced, and in the area of white collar crime, where the applicable statutes provide virtually no guidance and prosecutions are often based on individual prosecutors’ distaste for certain practices. However one might feel about any one of these issues, it seems vastly preferable to have the “real rules” set forth in written laws that all citizens can understand and (if they choose) obey.

So, back to the topic we started with—if you’re an Oregonian planning on taking advantage of the new marijuana “legalization,” here’s the version of prosecutorial discretion you’ll be relying on. The United States Department of Justice—the most formidable law enforcement body in the world, which in a drug case has the power to imprison you for decades and confiscate everything you own—has said, in an entirely non-binding way, that it probably won’t decide to exercise this power if you follow Oregon law. Unless, of course, the Department decides to change this policy (which it could legally do retroactively), or an individual prosecutor decides not to follow it, or something about you or your case makes prosecution seem appropriate.

Sleep tight.

Kevin Sali is a Lake Oswego attorney representing individuals and businesses in a broad range of criminal, civil and regulatory matters. Kevin spent four years as a high school science teacher in Miami, Florida before earning his law degree from Duke University. He is the author of Scientific Evidence: A Manual for Oregon Defense Attorneys and numerous other writings on a variety of topics in the legal field, and is a contributor to Huffington Post Crime. For more information visit salilaw.com.

Related Slideshow: 7 Things Oregon Can Learn from Legal Marijuana in Washington

In the wake of what many business owners, lobbyists and advocates call a rocky implementation of recreational marijuana in Washington, Oregon regulators have the opportunity to learn from their neighbor to the north.

Prev Next

Engage Medicinal Marijuana Industry Experts

Washington has been criticized for not incorporating the medicinal marijuana industry or its experts, in its transition to legalization.

“Give all of the people who are legally in the medical marijuana system an easy path, keep people in place,” lobbyist Geoff Sugerman said.

By being the first state to legalize medicinal marijuana in 1998, Oregon has the advantage of a fully functional supply chain of medicinal growers and retailers

Prev Next

Connect Growers and Retailers

Washington Retailers say at first it was hard to find newly licensed marijuana growers. The state can help the fledgling industry by helping to better connect producers and retailers, Cannabis City in-store manager Amber McGowan said.

Regulating wholesalers is another way to go between growers and retailers, McGowan said.

Prev Next

Phase in Retail and Production Permits together

By proportionately phasing in retail and pot farming permits, Oregon can prevent both the short supply and flooded market that Washington experienced. In July, retailers sold out in days, while the approved growers scrambled to meet the demand. According to McGowan, there are too many growers and not enough retailers to sell to now.

“There are too many farmers going out of business because there are not enough people to sell their product,” McGowan said. “To make it super successful, don’t over saturate the market with growers.”

Solstice Grown grower Alex Cooley advocates not putting a cap on the number of licenses issued at all.

Prev Next

Avoid Heavy Taxation

In Washington, growers pay an excise tax of 25 percent tax between grower and processor, another 25 percent tax between processor and retailer, and another 25 percent between retailer and customer.

This means a gram of marijuana, which goes for less than $10 on the black market, goes for $25 in retail stores, Cannabis City's Amber McGowan said.

This price differential is driving customers to the black market, critics say.

Prev Next

Don't Use a Lottery System

To limit the number of retail stores per county, would-be retailers entered a lottery through Washington's regulators to determine who was eligible to apply for a permit.

Critics say the lottery system cut out qualified retailers, some who had experience from the medical cannabis industry, while allowing unqualified people to set up shop.

Prev Next

Talk to Cities and Counties

Taking into account the laws specific to counties and municipalities will be essential to Oregon’s success in implementation, William Simpson of Northwest Producers and Processors Association.

“The single largest mistake we could make is not talking to the attorney generals, cities and counties about moratoriums and what would be allowed,” Simpson said. In Washington, some license holders were unable to open due to county moratoriums and bans.

Prev Next

Treat the Industry like Agriculture

Grower Alex Cooley argues that because marijuana is a plant, it should be regulated like an agricultural crop, taking into consideration harvest cycles. Washington suffered a short supply in July, and then a flooded market following the harvest of outdoor crops in the fall.

Cooley urges Oregon regulators to allow crops on farm land, as some Washington cities are now banning grow operations within city limits.

“It’s a plant, it should grow in the sun, not in a warehouse in Seattle,” he said.