The co-chair of a national group of district attorneys working on marijuana policy says the panel's meetings have been "illuminating." (Thinkstock / Getty Images)

Prosecuting pot: Nation’s DAs seek consensus

With legal marijuana taking root across the United States and a new White House administration mulling over how to approach the matter, a collective of the nation’s prosecutors is aiming to find consensus.

The National District Attorneys Association, a 67-year-old organization based in Arlington, Va., earlier this year formed a 27-member internal working group on cannabis-related issues.

The working group brings together prosecutors who have widely differing views about state-level marijuana enforcement and is expected to announce its policy position next month.

The Cannabist spoke with two such members: one who has opposed a 2016 statewide initiative to legalize medical marijuana in his state and another who has witnessed the evolution of some of the nation’s first recreational marijuana laws.

Here’s a quick synopsis of those conversations, which were conducted separately with group co-chair Eric Zahnd, Platte County (Missouri) prosecuting attorney in metro Kansas City, and Boulder County District Attorney Stan Garnett of Colorado:

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

Prosecutor Zahnd, you were involved in the opposition of marijuana measures in Missouri. How do those experiences translate to you serving as the co-chair of this panel?

Zahnd: The Missouri Association of Prosecuting Attorneys has opposed legalization of marijuana, in part because Missouri prosecutors believe the federal Controlled Substances Act, which makes marijuana illegal, preempts state laws attempting to legalize it. The working group includes members from states where marijuana has been legalized under state law as well as states where it remains illegal, so we have a good variety of opinions on the issue.

District Attorney Garnett, if Attorney General Jeff Sessions were to say he wants to shut down the state-based legal marijuana systems, would you adhere to that call and support the federal government in those efforts, or would you fight it?

Garnett: Enforcing federal drug law is the responsibility of the federal government. It is not a local district attorney’s responsibility. Same as immigration. … So let’s say that the attorney general of the United States announces a policy of more vigorous enforcement of federal Controlled Substances Act, with regard to marijuana. I might think that’s a bad decision and as a local district attorney, I might get in touch with the U.S. attorney here or even with the AG’s office and state my opinion, but that’s really not my decision. That’s his decision. It’s not going to change how I enforce Colorado law. Colorado law is what it is, and that’s what I’m sworn to enforce and that’s what I’ll enforce.

Where do you stand now on the marijuana issue? Have your minds changed about approaches toward enforcement after hearing the experiences of other DAs?

Zahnd: The working group meetings have been illuminating. I continue to learn much from prosecutors all across the nation, including a great deal from my colleagues in states where marijuana is now legal under state law.

Garnett: As I have listened to other DAs, I have understood more clearly the responsibility we have in Colorado to control the gray market and exports of Colorado marijuana out of state.

What was the impetus for the working group?

Zahnd: It’s clear that marijuana legalization is an issue that is confronting the nation. … Our goal is to come up with a position, ultimately, that would be presented to our executive committee. We’re not affiliated with any other organization; we have not been asked by any organization or any entity (including the presidential administration) to form this group. We want to be prepared when people say, “What is NDAA’s position on marijuana?”

Garnett: Views of marijuana are very divergent around the country and the thinking of NDAA was that, by have forming one of these working groups, in connection with issues around federal enforcement of marijuana laws would make sense with a change of administration. … Everybody is kind of wondering what this administration is going to do and so NDAA decided having a working group to see if we could develop some consensus as an organization on our view of whether more federal enforcement would make some sense.

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

What developments have occurred since the group’s formation?

Zahnd: The NDAA Marijuana Policy Working Group continues to meet and gather input from prosecutors with varied views on marijuana. We all agree on some things, such as that driving while high on marijuana is a dangerous crime and that children should never have access to products containing marijuana.

Garnett: The NDAA panel has continued its discussions and the positions of DAs from states without legalization have moderated as they have understood the reality of Colorado’s experience, which is much more positive than many had understood, and the complexity of any attempted federal crackdown.

Is there consensus yet?

Zahnd: It’s fair to say that prosecutors across the nation have varying opinions on marijuana.

Garnett: Again, I want to respect the confidentiality of the process, so I’m not talking about our actual working group discussions. But I’ve had enough individual discussions with different district attorneys from around the country to know, “No, there’s not consensus.” And what you see is that lots of district attorneys from traditionally conservative states, states that have had kind of a complete commitment to the drug war, want to see the federal government, under the Trump administration, come in and enforce the Controlled Substances Act in a way that closes down legalization in all states that have had some level of legalization. That’s based on discussions with district attorneys from around the country that I’ve had at both NDAA board meetings and elsewhere, but I don’t want to reference what we’re talking about in the working group.

Hearing some of the statements coming out of the Trump administration about marijuana, what actions do you hope the administration takes toward states that have legalized the recreational or medical use of marijuana?

Zahnd: There seems to be a consensus among the vast majority of my colleagues that federal restrictions on the distribution, sale, and use of marijuana should be enforced consistently across the nation to maintain respect for the rule of law.

Garnett: The statements from the Trump administration are random enough and inconsistent enough that they, alone, have not caused great concern, nor have they changed the dynamics of the discussion. The NDAA discussions have moderated as we have discussed the reality in Colorado and elsewhere and as DAs in other states have digested how complex any federal crackdown would be.

I have argued strongly against the idea of cracking down on “recreational” but not “medicinal.” It would be very damaging, in my opinion, to Colorado’s regulatory scheme to crack down on recreational marijuana because that is where we have the strongest and most effective regulatory scheme.

My impression is that the Trump administration (is) realizing how difficult, expensive and awkward a marijuana crackdown would be.