New Justice Department Guidance Allows State-Level Regulation
August 30, 2013
The Obama administration’s decision to allow Washington and Colorado to develop alternatives to current drug control policies is a smart and humane step.
Maria McFarland, deputy US program director

(New York) – The United States Justice Department’s decision not to prevent the states of Washington and Colorado from legalizing the use, production, distribution and sale of recreational marijuana should reduce the human rights costs of current drug control policies, Human Rights Watch said today. The announcement was coupled with the release of a Justice Department memorandum offering new guidance to all federal prosecutors concerning marijuana enforcement.

“The Obama administration’s decision to allow Washington and Colorado to develop alternatives to current drug control policies is a smart and humane step,” said Maria McFarland, deputy US program director at Human Rights Watch. “Existing policies that rely heavily on criminalizing drug use undermine human rights and have entailed serious costs in terms of violence and abuse. It’s well past time for the US to begin reforming its drug policies.”

The Justice Department memorandum, dated August 29, 2013, updates previous guidance in light of recent state ballot initiatives in Colorado and Washington that would legalize the recreational use of marijuana, as well as its regulated production, sale, and distribution. It also applies to the 20 US states that have legalized marijuana for medical purposes.

The memorandum indicates that the Justice Department will not interfere with states’ implementation of laws decriminalizing or legalizing marijuana in some form, so long as they do not interfere with certain federal priorities, including: preventing the distribution of marijuana to minors, preventing revenue from marijuana sales going to organized crime, and preventing violence and the use of firearms in the cultivation and distribution of marijuana.

The memorandum does not address the situation of persons whom federal authorities have prosecuted in relation to medical marijuana activities that complied with state laws but were deemed to violate federal law. To be consistent with current guidance, federal authorities should review convictions and prosecutions involving medical marijuana activities that complied with state law, and secure early release for those convicted, Human Rights Watch said.

The Justice Department memorandum appropriately highlights that a robust state regulatory and enforcement system may further federal priorities by, for example, preventing organized crime from benefiting from an illicit marijuana trade by replacing that trade with a tightly regulated market, Human Rights Watch said. 

“It’s encouraging that the Justice Department memo recognizes that a regulated drug distribution system may be helpful in reducing the power and wealth of criminal groups,” McFarland said. “Violent organized crime, well financed by revenues from illicit drug markets, poses a real threat to human rights and the rule of law globally. It’s crucial that governments look at alternative ways of regulating not only drug use but also the drug trade.”
While governments have a legitimate interest in preventing societal harms caused by drugs, current drug control policies have caused or contributed to serious human rights violations, Human Rights Watch said.

Subjecting individuals to criminal sanctions for the personal use and possession of drugs infringes on personal autonomy and the right to privacy. In much of the world, the criminalization of drug production and distribution has dramatically enhanced the profitability of illicit drug markets, which in turn has fueled the growth and operations of criminal organizations responsible for large-scale violence and human rights abuses. In the US it has also contributed to an explosion in the growth of the national prison population, with low-level drug offenders often serving disproportionately long sentences.

Human Rights Watch urges governments to rely on non-penal regulatory and public health approaches that do not violate human rights to deter, prevent, and remedy the harmful use of drugs. They should also take steps to reduce the human rights costs of current policies on drug production and distribution, including by decreasing reliance on criminal regulation in this area, and, where appropriate, adopting new legal and regulatory frameworks and adjusting enforcement practices.

“Colorado and Washington, along with states that allow medical marijuana, have started a much-needed shift away from the heavy reliance on criminal regulation of drugs,” McFarland said. “By giving these states a nod to go forward, the US government may be indicating a willingness to consider changes in federal drug control laws.”