Can Nevada turn marijuana enforcement over to the feds?

An indication of the endurance of the marijuana issue—this 1970s protest in front of the Nevada Legislature, which in 2013 will have to grapple with it again.

An indication of the endurance of the marijuana issue—this 1970s protest in front of the Nevada Legislature, which in 2013 will have to grapple with it again.


Sen. Tick Segerblom, a Clark County Democrat, will introduce legislation at the 2013 Nevada Legislature to decriminalize marijuana. Assembly Republican leader Pat Hickey is open to the idea.

While a Colorado- or Washington-style legalization is not likely in the cards—at least through the Legislature—decriminalization could lead to some substantial policy changes and shifting of resources in law enforcement if police agencies abided by the policy shift.

Because the federal Drug Enforcement Agency does not have the resources to deal with both small users and big traffickers, a decision by the Legislature to end Nevada’s police enforcement of marijuana possession cases would effectively create de facto legal marijuana.

Washoe County Sheriff Mike Haley avoided expressing his own view of decriminalization, but did say, “I have to enforce the laws enacted by the Legislature, irrespective of my personal beliefs.”

But some agencies might not take that view. Nevadans in 2000 voted 381,947 to 202,211 in favor of medical marijuana, but some local police still cooperate with federal agents in enforcing U.S. law over state law. There are, in fact, two cases involving medical marijuana before the Nevada Supreme Court, though state voters supposedly settled the issue in 2000 by approving medical uses.

Haley said knowing how he would handle decriminalization now is difficult because local and federal law enforcement is so intertwined.

“It’s a little bit complicated because I have people from my organization who are deputized as federal marshals, federal DEA, federal FBI,” he said. “They actually carry federal credentials. … Obviously, if the [decriminalization] law were to pass in Nevada I’m bound to abide by that law, and I would, but it would set up a conundrum for me. I’m also chair of HIDTA [High Intensity Drug Trafficking Administration], and we have a marijuana initiative within HIDTA. So I would abide by Nevada law, and I would look to my federal partners because it would still be federally prohibited.”

He pointed to the talks going on in Seattle between local police and federal officials to determine how that state’s legalization of marijuana will be handled.

“The chief of police there indicated that it was a very complicated discussion, one that would require restraint on the side of the public safety officer or sheriff to see how their federal counterparts were going to deal with the issue.”

The actions of Colorado and Washington voters making marijuana legal under state law have in some cases cut across party and ideological lines, with some conservatives urging respect for state decisions.

U.S. Rep. Diana DeGette, a Colorado Democrat, has introduced H.R. 6606 to give state laws on marijuana primacy over federal law. Rep. Mike Coffman, a Colorado Republican and opponent of legalization, is nevertheless a cosponsor of DeGette’s bill.

“I voted against Amendment 64 [Colorado marijuana legalization], and I strongly oppose the legalization of marijuana, but I also have an obligation to respect the will of the voters given the passage of this initiative, and so I feel obligated to support this legislation,” Coffman said.

Troy Eid, a George W. Bush appointee as U.S. attorney in Colorado, recently wrote in a Denver Post guest essay, “Letting states ‘opt out’ of the Controlled Substances Act’s prohibition against marijuana ought to be seriously considered.”

Last time

During federal alcohol prohibition in the 1920s, states were expected to join the federal government in “concurrent enforcement.” In Nevada in 1918, 59 percent of voters approved alcohol prohibition in a statewide election. That ballot measure also put enforcement under the authority of the Nevada State Police, an agency that no longer exists.

But the allure of prohibition faded fast, and the Nevada Legislature later repealed the voter-approved law, replacing it with a different enforcement measure that seemed designed to be overturned by the courts, which it was. Nevada was out of the business of enforcing prohibition, leaving the task to federal officials.

In 1923, President Coolidge called state governors—including Nevada’s James Scrugham—to the White House to jawbone them on helping out with enforcement. Scrugham returned to Nevada where he, in turn, called local officials to a meeting in Elko on how to help with enforcement. Whether it was done merely for show is not clear, but it came to little. In two ballot measures in 1926, Nevadans voted overwhelmingly against alcohol prohibition.

Some observers have expressed surprise that a state with a “libertarian strain” like Nevada has not embraced marijuana. But there is little in Nevada’s history of adventurous lawmaking that suggests the state is libertarian. The state’s novel legislative enactments were passed not as an expression of libertarianism but as efforts to generate commerce in a resource-poor state. The Nevada Legislature made prizefighting legal in 1897 during the long state economic depression that followed the decline of the Comstock Lode mining boom. Six-week divorces and legal gambling were approved by the legislature in 1931 during the Great Depression.

Today, the state seems less willing to offend the nation’s sensibilities in a quest for jobs than it was in the 1890s or 1930s. Its officials now treat respectability among the states and within the financial community as a higher value than being on the cutting edge—hardly a libertarian stance (“Has Nevada lost its nerve?” RN&R, July 14, 2011).

Many citizens cite the taxation possibilities of marijuana (see “Streetalk,” page 5) and the money that would be saved if it were made legal. How much money would be saved from decriminalization is not yet known, but when Segerblom’s bill is introduced, a fiscal note will be prepared on it. These notes are researched when a bill would cost the state or local government money, even though the overall effect of the bill would save money. In the case of Segerblom’s measure, at least some money would be lost because some fines would no longer be collected. But the fiscal note will likely also explore how much money would be saved.