How Will Prosecutors Deal With DC’s Marijuana Decriminalization Law?

In an interview with Washingtonian about his hearing on DC’s marijuana decriminalization law last Friday, Representative John Mica, a Florida Republican skeptical of the District’s ability to reform its local drug laws, asked a poignant question.

“If I’m standing on Pennsylvania Avenue and I’ve got 20 joints, what are the implications?” he said.

Mica didn’t pose the exact same question to the government witnesses at his hearing, but on Monday, he got somewhat of an answer from Ron Machen, the US Attorney for the District of Columbia, who clarified his office’s role in enforcing DC’s new law if it survives its congressional review period.

In a statement first supplied to the Washington Post, Machen’s office, which is responsible for prosecuting violations of the District’s criminal code, says it “will assess each case on an individualized basis.”

At the House Oversight Committee’s hearing last week on the decriminalization law, which Mica convened as part of his series of hearings on the Obama administration’s drug policies, officials from multiple federal agencies reminded Mica that as the legislation does not affect federal property, they will continue to enforce federal law where it applies—federal government buildings and parks, for example. But assuming the law is not struck down by an act of Congress and goes into effect on July 18, Machen says he will enforce it as written.

The law changes the penalty for possession of one ounce or less from a criminal sentence of up to six months in jail or a $1,000 fine to a $25 ticket similar to a parking violation. Growing, selling, and smoking pot would still be crimes, with consumption in public punishable by a $500 fine or up to 60 days in jail.

The full statement makes it fairly clear:

“Under the new bill, smoking marijuana in public would remain a criminal offense, and so anyone who smokes marijuana on federal property could still be prosecuted under D.C. law. Individuals arrested for merely possessing, but not using, less than one ounce of marijuana on federal property would be presented to our office for potential prosecution under federal law. We will assess each case on an individualized basis, weighing all available information and evidence, consistent with Justice Department enforcement priorities and the need to use our limited investigative and prosecutorial resources to address the most significant threats to public safety. We rely heavily on diversion programs in our local marijuana prosecutions, and would likely do the same with respect to federal offenses.”

The decriminalization law is likely to survive Mica’s probing and an overt attempt by Representative John Fleming, Louisiana Republican, to strike it down. (Fleming’s override bill would need to be approved by the Democratic-controlled Senate and signed by President Obama, both unlikely events.)

Machen’s office doesn’t simplify things entirely. While most marijuana arrests in DC are made by the Metropolitan Police Department, there are still several hundred by federal law enforcement agencies, including the US Park Police, Capitol Police, and Secret Service. The statement suggests that people arrested for marijuana on federal property—say, Rock Creek Park—could still face criminal penalties, giving Machen’s prosecutors an added responsiblity of determining to bring federal charges down on people who have not committed a crime in the eyes of local laws. 

But if Mica really wants to know what would happen to someone carrying 20 joints on Pennsylvania Avenue, he should look to the statement from Machen’s office. At half a gram of marijuana per joint, according to the RAND Corporation, and 28 grams to an ounce, Mica’s hypothetical bag of pot would weigh in at 10 grams. Considering the National Park Service has said Pennsylvania Avenue is under the jurisdiction of the DC government, the implications raised by Mica’s question are fairly obvious, assuming he is not standing on the part of Pennsylvania Avenue in front of the White House, where the Secret Service patrols: He would owe the District $25.

Benjamin Freed

Staff Writer

Benjamin Freed joined Washingtonian in August 2013 and covers politics, business, and media. He was previously the editor of DCist and has also written for Washington City Paper, the New York Times, the New Republic, Slate, and BuzzFeed. He lives in Adams Morgan.