Attorney General Eric Holder announced that the US Department of Justice would allow the marijuana legalization laws in Colorado and Washington to go into effect.

Holder announced that the Department of Justice will take a “trust but verify approach” to the new marijuana laws, but did reserve the right to file a preemption lawsuit at a later date if necessary.

In a three page memo issued by Deputy Attorney General Cole, the DOJ clarified they will still retain the right to prosecute individuals who engage in the following circumstances:

• The distribution of marijuana to minors
• Revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels
• The diversion of marijuana from states where it is legal under state law in some form to other states
• State-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity
• Violence and the use of firearms in the cultivation and distribution of marijuana
• Drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use
• Growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands
• Preventing marijuana possession or use on federal property

The Department of Justice Memo is below:

Today, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.

In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute. To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize.  These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area.

Outside of these enforcement priorities, however, the federal government has traditionally relied on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws. This guidance continues that policy.

For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance. These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time.  But if any of the stated harms do materialize—either despite a strict regulatory scheme or because of the lack of one—federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.

Read the memo sent to all United States Attorneys by Deputy Attorney General James M. Cole.