TERESA MATHEW JAN 23, 2018
A bill in the state legislature would protect cannabis users from federal enforcement, not unlike sanctuary policies for immigrants.
On Friday, Massachusetts State Representatives Dave Rogers and Mike Connolly filed an unusual piece of legislation. Their bill, called the “Refusal of Compliance Act,” would prevent local and state authorities from handing over people who follow state cannabis laws to federal agents unless those agents have a warrant. (Massachusetts legalized recreational marijuana in 2016.) The legislation has the same skeleton as many “sanctuary” immigration policies, which eliminate much of the voluntary cooperation between local law enforcement and federal immigration agents.
Massachusetts is already a sanctuary state in immigration terms. Now, it appears to be expanding that definition to include marijuana.
“Massachusetts voters have gone to the polls and expressed their support for what I’d call a sensible drug policy and an end to marijuana prohibition,” said Connolly. “I can appreciate the parallel between this and more typical sanctuary-state-type stuff. I think the comparison is pretty clear, to the extent that we are a state government responding to the will of our own voters and people in our community.”
When Massachusetts legalized marijuana, it included language that prohibited local law enforcement from assisting federal agents in prosecuting legal users of the drug. The new bill doubling down on that idea was prompted by U.S. Attorney General Jeff Sessions’ decision earlier this month to revoke the Cole Memo, an Obama-era policy that told the federal government to leave marijuana alone in states where it had been legalized.
Steve DeAngelo, a cannabis activist and founder of the marijuana dispensary Harborside Health Center in Oakland, California, told CityLab after the Cole Memo was rescinded that the best way for cities and states to protect their legal, licensed marijuana businesses was to effectively pass sanctuary policies. “If cities and states refuse to make their agencies available, it’s basically impossible for the feds to [prosecute],” DeAngelo said. Indeed, across America, local agencies and the Drug Enforcement Administration are closely intertwined—more so than similar task forces on immigration—as a legacy of the planning and execution of the War on Drugs.
But not all municipalities in Massachusetts voted to legalize marijuana, and after legalization passed, some of the dissenters opted to become “dry towns.” “Probably a lot of communities in there are looking at Sessions’ removal of the [Cole Memo] as a good opportunity to use federal laws to skirt around state legalization—especially in conservative rural communities,” said Rick Su, a professor at the University of Buffalo School of Law who focuses on immigration and local-government law. “It’s not surprising that Massachusetts is thinking about pre-empting local policies.”
There is another reason cities may be tempted to cooperate with the federal government. Sessions is a proponent of civil forfeiture, the practice of letting authorities keep the cash and property of someone suspected of being involved in a crime—even before charges are filed against him or her. The Obama administration had placed restrictions on the practice, which was especially popular during the War on Drugs during its peak in the 1980s, because of concern that police departments were funding themselves by seizing the cars, homes, and money of suspected drug dealers. In July, Sessions rolled back many of those restrictions; under the Department of Justice’s newly revived Equitable Sharing Program, 80 percent of the value of the assets seized goes back to the state or local police agencies.
Now, said Su, local communities who didn’t have a strong position on marijuana before may see a way to get money by cooperating with the federal government. “There’s a lot of cash there,” he said, “and for small communities thinking, ‘The mayor cut our budget; our police officers are worried about vehicles being old and need new gear,’ that looks really tempting.”
But Carol Rose, executive director of the Massachusetts branch of the American Civil Liberties Union, stressed that municipalities choosing to circumvent the state in such a manner would be violating existing Massachusetts law. “I think the law is clear,” she said, “but having this bill is a welcome move, because I think it sends a message—not only to the Trump administration and Department of Justice, but all the law enforcement in Massachusetts—that you follow the law of [the state] when it comes to drug laws. You don’t serve as agents for the Trump DOJ.”
Connolly said he can’t be sure what the towns who opted out of legalization will do, but he pointed out that they stand to gain from the potential tax revenue of legal, licensed dispensaries in the state. As a result, he said, “even those municipalities that may have decided to limit availability in the immediate future still have some interest in seeing the policy go forward.” Likewise, Su noted that localities in Massachusetts that chose to be dry may be “less likely to betray the state policy, because under state law they [already] have an option to not legalize.”
On the whole, Massachusetts has not been thrilled by the changing focus at DOJ. Governor Charlie Baker has said he hopes Andrew Lelling, the state’s attorney general, will focus on illegal street drugs—particularly the opioid fentanyl—instead of marijuana. Massachusetts Public Safety Secretary Daniel Bennett told the Boston Herald, “We have no intention of raiding a pot shop that is legal under state law.” Detective Lieutenant Michael McCarthy, a spokesperson for the Boston Police Department, echoed that sentiment, telling the Herald, “Similar to our position on immigration, the BPD will not actively enforce federal marijuana laws at the local level.”
There are a few key differences between immigration sanctuary policy and marijuana sanctuary policy. One of them has to do with the way that oversight over each issue has traditionally been delineated. “There has always been a debate in marijuana about whether the federal government has the power to regulate [it], especially if it doesn’t cross state lines,” said Su. “On the other hand, the Supreme Court has been very clear that immigration is a federal-government issue. When it comes to immigration, there is a sense that not only can the federal government regulate it, but states and localities should not at all. Whereas with marijuana, the court has not said that.”
Another difference, Su said, is how much the Trump administration actually cares about the respective issues. “My sense is that the politics behind marijuana are very different from immigration,” he said. “Within the Trump administration, [immigration] is their base, their bread and butter right now. With marijuana, other than Sessions’ moral crusade, it’s not getting a lot of support from the establishment or the president.”
Connolly, the representative who introduced the “sanctuary” bill, isn’t sure about the likelihood of its passing, and admitted that it was brought forward relatively late in the legislative calendar. He said the need for such legislation will be more urgent if local law enforcement starts to cooperate with federal pot crackdowns (there are no examples of that happening yet). But even if the bill doesn’t go through, he hopes it will be a clear sign to the federal government about the way his state feels about Sessions’ agenda. “My hope—and a lot of people’s hope,” he said, “is through these different statements, we’re sending a message that this change of policy isn’t welcome.”
“Through these different statements, we’re sending a message that this change of policy isn’t welcome.”
Massachusetts isn’t the only state to have considered marijuana sanctuary policies. In June, California passed a similar measure through its assembly before the bill ultimately stalled in the state senate. California Assemblyman Reggie Jones-Sawyer has recently decided to reintroduce the bill, prompted, like Connolly, by the DOJ’s recent actions.
So far, the Massachusetts bill is largely symbolic. There won’t be a pressing need for it until the federal government starts aggressively targeting marijuana, or until local municipalities start teaming up with federal agencies to thwart the state’s legalization policy—actions that are unlikely to happen, according to Su, given the Trump administration’s overall ambivalence on the issue. But even if a sanctuary bill about marijuana is little more than a statement, states may push for one, deciding that they want their opinions heard loud and clear. Su pointed out that attorney generals in each state are less likely to prosecute marijuana-related crimes if they think being punitive on pot will go over badly with the people.
Rose, of the ACLU, said that many states, such as Washington, Nevada, Oregon, and California, “made the decision that criminalizing marijuana is a smokescreen for prosecuting people of color at disparate rates, and undermines public safety.” (According to the ACLU, black Americans are 3.7 times more likely to be arrested for marijuana possession than whites, although both groups use the drug at roughly the same rate.)
“The fact that Jeff Sessions doesn’t like it is not adequate reasoning to step down,” Rose said. “I do think we’re going to see states standing up to reflect the will of the people.”