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DA marijuana working group member clarifies: DAs don’t have a stance on Cole memo

Insiders and experts dish on what new white paper by the National District Attorneys Association does – and does not – say

A coalition of the nation’s prosecutors recently proclaimed that marijuana enforcement policies should be consistent across America.

But while a working group for the National District Attorneys Association decreed the U.S. Constitution’s Supremacy Clause should reign supreme in a time of rapidly shifting state marijuana laws, it stopped short of stating explicitly what those enforcement policies should be.

NDAA on April 20 released a white paper, “Marijuana Policy: The State and Local Prosecutors’ Perspective,” after months of meetings and discussions by a 27-member group that consisted of attorneys from locales where marijuana is legal in various forms and from states that prohibit cannabis use, possession, cultivation and distribution.

While NDAA did not take a firm position on enforcement approaches, the working group did find agreement that impaired driving and children’s access to marijuana are pressing concerns. NDAA also supported calls for research.

Federal drug enforcement policy regarding the manufacture, importation, possession, use and distribution of marijuana should be applied consistently across the nation to maintain respect for the rule of law. The National District Attorneys Association (NDAA) supports ongoing research into medicinal uses of marijuana and its derivatives, carried out consistent with any other research regulated by the Food and Drug Administration (FDA). NDAA also supports research regarding the impact of marijuana use on driving, regulated by appropriate agencies.

As the NDAA working group dug in, The Cannabist interviewed two members of that committee: Eric Zahnd, group co-chair and prosecuting attorney for Platte County, Missouri, in metropolitan Kansas City; and Stan Garnett, the district attorney for Boulder County, Colorado.

Following the white paper’s publication, The Cannabist caught up with Zahnd and Garnett to talk about the committee’s position, what didn’t make it into the report and why certain stances were and were not taken.

Cole Memo concerns

Marijuana advocacy group National Organization for the Reform of Marijuana Laws railed against NDAA’s paper, claiming that the group was calling for the Cole Memo to be scrapped and for an increase in federal enforcement.

“A state may undoubtedly choose not to criminalize or regulate marijuana,” NDAA officials wrote. “But a state law that affirmatively authorizes the production, distribution and use of marijuana stands as an obstacle to the comprehensive federal framework and is subject to preemption.”

Zahnd told The Cannabist that NDAA did not say what enforcement policies should be or what should happen to the Cole Memo, the Obama administration hold-over providing guidance to prosecutors and law enforcement on where to focus marijuana enforcement efforts.

“We have not taken a position on that, and purposefully did not take a position,” he said. “This report was never an attempt to address every controversial topic regarding marijuana use, but we wanted to address some of the important topics. Others, we left for another day or another policy-maker.”

Zahnd said member Tom Raynes, executive director of the Colorado District Attorneys Council, provided an accurate portrayal of NDAA’s positions to the Colorado Politics blog, which first reported on the NDAA paper.

More questions than answers

NDAA’s conclusions aren’t earth-shattering, said Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at University of Denver’s Sturm College of Law.

“It’s not that surprising that DAs are saying that we should enforce the law,” he said.

However, Kamin questioned NDAA’s calls for consistent enforcement.

“I don’t know what that means; they are applying (enforcement and the Cole Memo) consistently,” he said.

What the report does show is there remains a great need for objective evidence and information about the performance and outcomes of state-based legalization experiments, he said. For example, statistics may show higher incidences of drivers testing positive for marijuana, but it’s not often mentioned that Colorado is putting a greater emphasis on roadside testing and tracking of marijuana impairment, Kamin said.

“Everything has to be read with a little bit of caution and context,” he said.

Zahnd declined to address specific follow-up questions about enforcement, Kamin’s arguments and NORML’s claims. Instead, he reiterated the following statement:

“NDAA’s report does not take a position on what the Federal drug enforcement policy regarding marijuana should be. However, we believe that it should be enforced consistently across the nation to maintain respect for the rule of law.

I’m sorry I can’t be more specific, but the working group simply did not get into that level of minutia in our final report. We did not intend to answer every question regarding marijuana, but we arrived at a consensus report that addresses some of the very important issues surrounding marijuana policy.”

Agreement on impaired driving and children’s access to marijuana

“I think we were successful at developing a strong consensus around a number of rapidly evolving issues around marijuana use,” Zahnd said.

Eric Zahnd is the Platte County, Missouri Prosecuting Attorney
Eric Zahnd is the Platte County, Missouri Prosecuting Attorney. (Facebook)

The NDAA noted two specific concerns: impaired driving and children’s access to marijuana.

The paper cites statistics from a 2013-2014 National Highway Transportation Safety Administration roadside survey of weekend nighttime drivers that showed 12.6 percent tested positive for THC, an increase of 48 percent from 2007.

How those positive readings translate to impairment is another matter.

“We need more research on both what constitutes impairment and how we are going to measure impairment,” Zahnd said.

Ideally, those measurements would be applied to law in the same way blood-alcohol content levels are used for determining alcohol intoxication, he said. However, there’s not yet a reasonable assessment for marijuana, given that it is absorbed differently and cannabinoids can remain in the body longer than alcohol, he added.

“We’re not there yet with marijuana, and we need work to help get us there,” he said.

On children’s use, the committee warned against the potential of marijuana serving as a gateway drug as well as ill effects on brain development, citing a several data points and statements from anti-legalization group Smart Approaches to Marijuana.

“Legalization of marijuana for purported medicinal and recreational purposes has increased access by children,” NDAA committee members wrote. “For all of these reasons, it is vitally important to do all we can to prevent access to marijuana by youth in America. Their health, safety and welfare demand no less.”

Principled opposition

Garnett, a self-proclaimed “thorn in the side” of the majority of the working group, was one of two prosecutors to vote against the final version of the policy statement.

Boulder County District Attorney Stan Garnett
Boulder County District Attorney Stan Garnett. (Andy Cross, Denver Post file)

“I think what this [white paper] reflects is this was a product of a committee within a pretty conservative group: NDAA is not at the forefront of creative social thought,” Garnett said. “This reflects the view of many prosecutors across the United States.

“I worked very hard to moderate a lot of the language; it came out a lot better than a lot of the earlier versions.”

Earlier iterations had a summary position arguing for legalized states to bring their laws into compliance with the Controlled Substances Act, he said.

Several committee members held certain perceptions of Colorado, that legalization led to a “marijuana-fueled Sodom and Gomorrah” with “everybody smoking and civilization collapsing,” Garnett said. Members also were unaware that Colorado has a Marijuana Enforcement Division and a regulatory scheme in place to manage and closely track the industry’s development, he said.

“We spent a lot of time on the committee trying to make sure they had an accurate understanding of what was happening in Colorado,” Garnett said. “It was pretty clear they didn’t.”

Garnett criticized the April 20 release date of the report, equating it to issuing a report “urging the banning of corned beef and cabbage and green beer on March 17.”

Next steps

Garnett said the working group exposed philosophical schisms within the NDAA.

“Some of us are talking about forming a progressive caucus within NDAA,” he said.

Zahnd said being a part of the marijuana policy working group provided insight for how he views the topic.

“I continue to worry about some of the dangers of marijuana, but it’s really helpful for me to hear from others as far as how they’ve dealt with it,” he said.

NDAA officials provided the report to members of Congress as well as officials in the Department of Justice, Zahnd said.

As of Monday, NDAA has not received much substantive feedback other than the topic is a timely issue and that NDAA’s paper was appreciated, said Nelson O. Bunn Jr., NDAA’s director of policy and government affairs.

The committee’s work is done, for now, on its marijuana policy position, Zahnd said. It’s possible that another working group may be formed in the future, if necessary.

“But for now we’ve come up with a position that represents the entire association,” he said.