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Attorney General: It’s Unclear Whether Federal Government Can Force States to Criminalize Drugs

AG Eric Holder stands at a podium as he explains that it is unclear if the federal government can force states to criminalize marijuana.


Attorney General: It’s Unclear Whether Federal Government Can Force States to Criminalize Drugs

Attorney General Eric Holder appeared before the House Judiciary Committee today for an oversight hearing in which he stated that federal law does not always trump state law, declined to initiate the process to reschedule marijuana and reaffirmed his commitment to granting clemency to low-level nonviolent drug offenders with unduly harsh sentences.

Under questioning by Rep. Jason Smith (R-MO), who asked the attorney general whether federal law trumps state law when the two are in conflict, Holder said that while federal law is supreme in many matters, it is “an interesting question” whether the federal government can force a state to criminalize a particular behavior.

“I am hopeful that as public opinion continues to shift in favor of marijuana reform, the White House will one day have the courage to take a larger role in the push to legalization,” said Law Enforcement Against Prohibition executive director Major Neill Franklin (Ret.). “Until then, states remain the innovators, exercising their constitutionally protected police powers to lead the charge toward sensible change that at least the administration has the good sense to follow,”

Despite saying he was “glad to…work with Congress if there is a desire to look at and re-examine how [marijuana] is scheduled” late last week, Holder declined to commit to initiate the process to reschedule marijuana.

Currently, marijuana is a Schedule I drug under the Controlled Substances Act, a classification for those drugs with “no currently accepted medical use and a high potential for abuse.” The Schedule I status enacts a de facto ban on research on their effects and safety.

Rep. Steve Cohen (D-TN) pressed him on his reluctance to act to reschedule the substance. He cited Title 21 of the Controlled Substances Act, which allows the Attorney General to request the Secretary of Health and Human Services to do a scientific and medical review and make a scheduling recommendation based on scientific research rather than politics.

If the Secretary were to recommend rescheduling, the Attorney General could then initiate proceedings for its removal without congressional involvement. Cohen noted that Dr. Sanjay Gupta, chief medical correspondent for CNN, has said he believes in the ability of marijuana to treat conditions such as epilepsy and multiple sclerosis and that more research should be conducted.

“While we have been encouraged by Attorney General Holder’s comments surrounding more sensible marijuana policy, it’s time he took substantial action to back up that rhetoric,” added Lieutenant Commander Diane Goldstein (Ret.). “An offer to work with a Congress that last year passed the fewest bills in history on something he could easily do himself is not much of an offer.”

Holder also confirmed his support for Deputy Attorney General James M. Cole’s recent call to defense lawyers to help the government locate low-level, nonviolent drug prisoners and encourage them to apply for clemency. He said the Department of Justice was establishing a seven-person team, including four attorneys, who would review the cases of those in jail for life or near-life sentences despite not being leaders of an operation or tied to cartels or gangs.

“The pendulum swung a little too far in the 80s,” Holder commented on the zeal to pass mandatory minimums and other determinate sentences in the wake of public fears of the “crack epidemic” of that time.

“These sentences were enacted in haste amid a climate of fear. Clemency is a start, but what we need is a fundamental reappraisal of how we approach drug use and abuse in this country,” said Major Franklin.

In 2010, Congress unanimously voted to reduce the 100-to-one disparity between sentences for crack cocaine offenses and those for powdered cocaine that disproportionately targeted Blacks because crack cocaine was more popular in Black neighborhoods while Whites were more likely to use powdered cocaine.

In December, eight federal inmates who received sentences under the old rules had their sentences commuted by President Obama. The Department of Justice is now looking for other inmates who were inappropriately sentenced.

Finally, Representatives Gowdy and Labrador both called into question Holder’s practice of writing memos guiding the prosecutors below him to avoid including weights on charge sheets so as to avoid triggering mandatory minimum laws. Instead, they urged him to work with Congress to expand safety valves. Holder countered by saying that the move was common sense and a reasonable use of prosecutorial discretion.

Do you think Attorney General Holder is doing enough to reform drug policy? Tell us in the comments below.

Reposted with special permission from Law Enforcement Against Prohibition

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