Outgoing US Attorney Grappled With New Marijuana Laws, Terrorism

Ryan Warner: This is Colorado Matters from CPR News. I'm Ryan Warner. Some of the country's biggest legal dilemmas have erupted in Colorado. Foremost among them, the state's legalization of marijuana, in defiance of course of the federal government. That has made for an intense six years if you ask John Walsh. He stepped down just yesterday as U.S. Attorney in Colorado, the top federal prosecutor in the state. Terrorism and gun violence have also loomed large during his tenure. And John, welcome to the program.

John Walsh: Thanks for having me.

Warner: On marijuana, was there some guiding principal you followed to decide whether to prosecute a case or to leave it be?

Walsh: Well from the beginning our focus really was on where there was a federal interest. In other words, we always wanted to see where we thought there was harm being done to the public, public health, public safety, with an idea that okay, the federal government doesn't prosecute every case that's out there. The vast majority of criminal prosecutions take place at the state and local level. We try to hit constantly big drug trafficking organizations, things that are really more broadly in an interstate way affecting public health and public safety and those were some of the core guiding principles we used.

Warner: And so you would ask yourself where is there public harm and most often, what were those cases? Trafficking, were there other examples?

Walsh: Well in 2013 the department came down with guidance to us as to how all federal prosecutors across the country should be addressing the issue of how to handle marijuana enforcement when a state has legalized either recreation or medical, recreational or medical marijuana under state law.

Warner: I remember when that memo came down, I think from Eric Holder at the U.S. Attorney General's office.

Walsh: It was from D.C. and really focused us in on eight different areas that included things like violence and drug cartel involvement, interstate transportation from states that had legalized marijuana to states that still had it completely illegal. So those were some of the things we focused on. Never, never has it been a major federal priority for prosecution to go after sort of the casual user of marijuana. That was true before legalization. We didn't bring possession of marijuana cases.

Warner: Where do you see current harms?

Walsh: Well right now in Colorado there's a wave and it's a disturbing wave of people coming in from out of state who are set at leasing or buying houses, just regular residential homes, and setting up sort of illegal or pirate marijuana grows, maybe 100 or 200 or 300 plants. Now that process, mind you, becomes very dangerous because to do that, for the lights and for all of the equipment that goes around a hydroponic grow, you have to pump in a lot of electricity and guess what, a lot of these folks are not following electrical codes and so we've had some fires. More disturbingly though, what happens with much of that marijuana in those what I'll call pirate grows, is it gets shipped out of state. It's not being addressed, it's not under the state legalization system any more than it is under federal law.

Warner: And so homes you're saying are being transformed essentially into places of industry.

Walsh: Essentially into sort of small hydroponic farms. But it's a very substantial problem along the Front Range in particular there are probably over a 1,000 of these houses. And I think both state and local law enforcement and federal law enforcement is really devoting a lot of attention to it now as a team.

Warner: Would you say that there's a crackdown underway?

Walsh: You know I don't know if I would call it a crackdown. I think there's a, this has happened in the last 18 months to two years so I think there is a growing awareness and a growing focus on that subject. I will say that one of the great things that has developed over the last few years, and something that we strive very hard to accomplish, was bringing federal and state law enforcement together to address those areas where marijuana activities were in fact harming the public in some way.

Warner: You say that these grows are in violation of state law and I don’t imagine that you are wanting to insert yourself into state lawmaking but do you think that there are regulations or laws that the state should consider that could get those under wraps?

Walsh: Well I give a lot of credit to the state administration and the governor's office and his folks, the public safety department and the Colorado Department of Public Health and Environment because they're aware of this problem now and they've been looking very hard at how you can address this effectively. One of the big issues is the recommendations from doctors to patients for 99 plants, that they can grow 99 plants for their own personal use for medical reasons. If you see these plants, they're like small trees. The idea that a single patient would need 99 plants is really a little hard to get your arms around. So I know that the governor's office as well as other folks in state government are working very hard to figure out how can we get a handle on that. How can we make sure that legitimate state law medical marijuana processes are not circumvented.

Warner: And I'll say that the governor was in opposition to recreational marijuana before it was legalized and has since called this an experiment, one that I think has gone a little bit better than he forecast. You know just yesterday the federal government reaffirmed its stance that marijuana should be a Schedule 1 drug, despite the fact that half the states in the District of Columbia have legalized some form of marijuana. Point blank, should the federal government bow to reality and to legalize marijuana?

Walsh: Well remember what the scheduling process is about. The scheduling process is about whether or not there is an accepted medical use for marijuana. And in this case, smoked marijuana, right. There are some narrow areas where there is an acceptable medical use for derivatives of marijuana but for smoked marijuana, no, there really isn't a medical evidence that that is accepted broadly.

Warner: Because what flows out of Schedule 1 is that the FDA says no, this is not pure medicine.

Walsh: That's right. And in other words, it doesn't have a medical purpose therefore a doctor can't prescribe it. And what is interesting though is that the DEA is also moving towards making it easier for medical research to be done on marijuana and I think those two decisions really go hand in hand, which is right now we don’t have that medical evidence that would permit this to be rescheduled under the law but we understand that there are people who believe that it does and we're going to try to facilitate legitimate medical research to determine if those are in fact appropriate medical purposes.

Warner: But let me ask that question separate of the medical concerns. Do you think marijuana should be legalized?

Walsh: Well I was not in favor of that, I'll just put that out there. Like the governor, I thought it was not a good idea to legalize recreational marijuana. However, this is a democracy and the people of the state voted by a pretty substantial margin to legalize it and for that reason, my approach has been, because my job is to enforce the law, not to make it, or has been, has always been, fine, if that's what the voters want to do, let's make sure this doesn't cause unintended consequences and harms to public safety and to public health. Bottom line is this, if we could do this all over again and take it back, I probably would. But having said that, having said that, I don’t think it's been a disaster. It's, we are, as the governor said, it's an experiment and we're moving forward with it and I think Colorado is on the forefront of making this work.

Warner: It hasn't been a disaster. That's as generous as you'll be on how it's gone?

Walsh: Well I think it's interesting. Because it's a work in process, there are parts that have worked very well. I give a lot of credit to the state of Colorado in the way it has regulated recreational marijuana but because we have both the medical marijuana system and a recreational system.

Warner: And the medical system being taxed much less.

Walsh: There is sort of a gaming of those two different systems.

Warner: You're listening to Colorado Matters, I'm Ryan Warner. And we have with us, John Walsh, who just yesterday stepped down as U.S. Attorney in Colorado, the top federal prosecutor in this state. It's been an intense six years for him and let's move on to some other topics. John, one that's got a lot of attention lately of course is relations between police and communities, including police shootings of citizens and then shootings of police officers in Dallas, Baton Rouge. What do you think has to change in this relationship?

Walsh: Well I think it's nothing that can happen overnight. There has to be a really concerted effort by law enforcement to get out into the community and to build trust in the community and to approach enforcement of the laws in a way that really takes into account community concerns.

Warner: You think there's a lack of that?

Walsh: No, not necessarily. I think it depends, there is certainly a perception in some communities that, especially communities that are affected disproportionally by violent crime and other types of crime, and minority communities, that the police sometimes, or often don't take into account their needs. But I don’t know, I think that's a reflection of a lot of history, a lot of really unfortunate history over decades and even centuries. You know the president commissioned a report on 21st-century policing and it had in it a whole bunch of specific ways to approach winning the trust of all communities as you go out and enforce the law.

Warner: What was an example that caught your eye?

Walsh: Well there are a number of things. One I think, what the report as a whole really focuses on is the importance of engaging the community and engaging individual officers with the community on a more personalized level. You know I've talked to a lot of people in communities that are, and many minority communities that get hit hard with crime every day. Those folks want effective law enforcement in their community. They know that the quality of life in their community has been reduced. At the same time, they don't want to see young people in their part of town targeted in a way they think is unfair or may even in their eyes be based on race. So it's a complicated thing. The Attorney General has gone on two separate tours around the country, going to communities where there is this question of trust and really trying to reach out and I think she's done a spectacular job of taking the steps that we need to to begin on a road that will take us a while to end.

Warner: So I'm just trying to figure out what that means. Is that a policy change or is that an environment change, an ambience change on police forces, you know?

Walsh: I think it's both. I certainly think that law enforcement training that addresses implicit bias in the way law enforcement work is done where there's a risk of implicit bias is important. At the same time there are some policy changes that need to be made in terms of how you go about addressing when you pull people over, what constitutes a sufficient basis to stop. Having said that I think it's really important to say something that we, in this day and age and after the terrible things that have happened this summer in Dallas and elsewhere, police officers and law enforcement agents of all kinds have a legitimate safety concern that they take with them every day they walk out of a roll call and get on the street. They have a right, as we all know, to come home at night as well to their families.

Warner: And I don’t think anyone argues with that.

Walsh: No, I don’t think so either. Having said that, many of the debates, many of the discussions, I think we have to take into account that there are legitimate interests on both sides and it's a balance.

Warner: The now former-U.S. Attorney in Colorado John Walsh joins us, reflecting on his six years in an intense job. You coordinated the federal investigation of the Aurora Shootings and several months later testified to Congress, speaking on behalf of the Department of Justice to support limits on so-called assault weapons and high capacity magazines. Here's just a bit of your testimony.

Walsh: [Recording] As the United States Attorney for Colorado I go to bed every night in these months since July, 2012, wondering whether I will be awakened by another pre-dawn call like the one I received on July 20th of last year which notified me of the horrifying mass shooting in Aurora. Or whether I will receive calls like those I've since received from other U.S. Attorneys around the country confronting the same sort of horror in their own home state.

Warner: You have resigned; you may go into private practice. Do you think you'll campaign for those gun controls? Let me say that there's already a magazine limit in Colorado.

Walsh: Well I think that it's important, Colorado has done a number of things that are crucially important that I support on a national level. One is limiting magazine sizes. You know it was a 90 cartridge magazine that got used in the Aurora theater shooting and Holmes got off over 60 shots. Why do we need a magazine that large, in truth?  And so when Colorado limited magazine size to fifteen, I think that was a big step in the right direction.

Warner: That was still controversial.

Walsh: Well it was certainly controversial. On the other hand, the fact that a shooter has to reload after a certain number of shots makes a huge difference. In the Gabby Giffords case you'll recall in Tucson when Congresswoman Gifford's was shot, that shooter was stopped because he had to stop to reload. It's crucially, crucially important that we not give unnecessary strength to people who might use weapons like that in a terrible way. At the same time I think universal background checks are crucial on a national level. You know the sky hasn't fallen by magazine limits and universal background checks here in Colorado. I strongly support that on a national level. The assault weapon ban is harder because there are technical issues related to how you define an assault weapon ban that makes it difficult to implement, as we found in the 1990s. Having said that, I think it's a legitimate question as to why some weapons, some truly military derived weapons need to be available easily and broadly in a way that's not all that much different than any other weapon.

Warner: Let's wrap up with terrorism. You dealt with that in one instance when three teenage girls from an Aurora high school were apparently recruited by the Islamic State. They left Colorado, went to Germany and were hoping to get to Syria. What did you learn from that case? In just a minute.

Walsh: You know one of the things that we have to address in when we think about violent extremism is what is inducing young people to be attracted to things like ISIS or ISIL or White Supremacist sort of violent extremism.

Warner: So it's not just abroad.

Walsh: No, it's not. And in fact if you look at the history in Colorado, where people have actually been hurt by violent extremism and killed in Colorado, none of it is abroad. The violent acts that have happened in the state of Colorado have been things like the Planned Parenthood shooting in Thanksgiving of last year. The attacks, the Alan Berg murder in the 1980s of a radio show host.

Warner: Talk show host, right.

Walsh: By anti-Semitic White Supremacists. When we talk about violent extremism, we've got to think about the whole range of what's going on out there and we need to see what we can do, not only to address it when it arrives on our doorstep, but to prevent it by looking at how young people get enticed by social media now into the kind of ideology and violent rhetoric that leads to violence.

Warner: Thank you for being with us.

Walsh: Thank you.