A commission established by President Donald Trump recently released a report on law enforcement issues that is critical of local efforts to legalize marijuana or otherwise decriminalize drugs.
The 300-page document from the Presidential Commission On Law Enforcement covers a lot of ground, but it focuses on cannabis and drug policy in a number of sections.
For example, it discusses the need to address issues such as substance misuse and homelessness but says they must be balanced with “enforcing the law and maintaining public safety.”
The report notes that “localities across this country have decriminalized or reduced sanctions for drug use, such as in the case of marijuana, or ‘quality of life’ crimes—actions that are often a result of homelessness—such as public urination.”
The panel argued that drug policy reforms “merely raise the bar for law enforcement arrests,” but “do not account for the reality that law enforcement officers still must address the complaints about these individuals from community members, respond to the noncriminal results of untreated substance use problems (e.g., overdoses), or interact with large homeless populations.”
The commission recommends that “the Department of Justice should examine how local laws and policies that decriminalize or reduce sanctions for drug use or activities related to homelessness impact law enforcement and public safety.”
The commission, which was established by Trump through a 2019 executive order, argued that enacting decriminalization policies counterintuitively “often results in an increase in the number of people in need who intersect with law enforcement, while the mechanisms to sanction these behaviors and shepherd people into court-mandated treatment programs are removed.”
“This may have a greater cost to the community, including escalation and long-term drug use,” the report says, concluding that the Justice Department and state and local governments should weigh the “impact and side effects that the laws and policies of local and jurisdictions have on the safety of their community and effectiveness of their criminal justice system.”
The document also quotes the Vermont U.S. attorney saying that decriminalization “takes a tool away from law enforcement, signals that the behavior is OK and will not have consequences, and logically will lead to more of the undesirable behavior.”
The panel’s 18 members primarily have backgrounds in law enforcement. One member is the chief of operations for the Drug Enforcement Administration, for example, and another is a Federal Bureau of Investigation deputy director. The attorney general of Florida is also a member, as are several local sheriffs.
The commission’s report also pushes back against reformers’ argument that punitive anti-drug laws are a main contributor to mass incarceration, asserting that non-violent drug offenders represent a small fraction of the overall federal prison population.
That said, it does acknowledge that law enforcement alone “cannot be expected to remedy the scourge of drug addiction.”
“Law enforcement is part of a government architecture of social welfare and public safety systems that collaboratively function to keep communities safe,” the report states. “Nevertheless, in many communities, law enforcement still bears the primary responsibility of managing the social ills that motivate crime—be it mental illness, drug addiction, or homelessness.”
“As law enforcement has assumed the duties of both public safety and social caretaking, finite resources within their agencies have been diverted from traditional police work to the domain of social provider—where law enforcement often lacks the relevant resources, expertise, or authority,” it continues.
The commission held 15 hearings to take testimony in preparation for putting the report together, and cannabis policy was raised at several of those meetings.
In one of the more interesting exchanges, the Orange County, California sheriff testified that the federal government should “advocate for removing [marijuana] as a Schedule I narcotic” to promote public safety because it could help facilitate the creation of a cannabis impairment test.
That said, he claimed that high-THC products cause psychosis and expressed frustration over the broader reform movement, stating that California’s push to reduce the prison population is “being done at the expense of our residents, families [and] kids.”
A federal prosecutor from California was asked about how he navigates the federal-state cannabis policy conflict and told the panel that his office focuses “on what we consider to be the classic federal marijuana cases and that largely is interstate trafficking of marijuana.”
Testimony from McGregor Scott, the U.S. attorney for the Eastern District of California, informed a section of the final report concerning prosecutorial discretion.
“A threat to the rule of law, and the ability of law enforcement to uphold it, has recently come from self-identified ‘progressive’ or ‘social reform’ prosecutors who purport to share the distrust and cynicism for law enforcement that some in their communities have,” the report states.
“Despite their election to a position to enforce the law, these prosecutors view the very laws they enforce as unjust and illegitimate, and therefore seek to undermine that system by unilaterally deciding not to enforce certain laws,” it says. “Unlike standard prosecutorial discretion, in which a prosecutor assesses whether to pursue charges after a case-by-case examination of the individual circumstances, non-enforcement policies remove that discretion entirely by prescribing that certain laws will be categorically unenforced.”
An Obama-era Justice Department memo did provide prosecutors with guidance on the type of discretion they should use when it comes to pursuing cannabis cases amid the state-level legalization movement, but that was rescinded under Trump’s first attorney general, Jeff Sessions.
The Trump administration’s approach to marijuana has been difficult to define. On the one hand, the president has appointed numerous officials with hostile attitudes toward cannabis reform; on the other hand, there’s been no federal crackdown on legal marijuana states.
In a sense, the commission’s report reflects that dichotomy. While critical of cannabis legalization and broader drug decriminalization, members stopped short of suggesting that the federal government should ramp up prosecutions in the growing, state-legal market.
What remains to be seen is how cannabis will be handled under President-elect Joe Biden’s Justice Department.
He’s in favor of medical marijuana legalization, modest rescheduling, decriminalization, expungements for low-level convictions and allowing states to enact their own policies without fear of federal intervention. However, he’s yet to name an attorney general who could fill the guidance gap for federal prosecutors—and his ongoing opposition to adult-use legalization is keeping advocates on their toes.