SEATTLE (AP) — The FBI is refusing to run nationwide background checks on people applying to run legal marijuana businesses in Washington state, even though it has conducted similar checks in Colorado — a discrepancy that illustrates the quandary the Justice Department faces as it allows the states to experiment with regulating a drug that's long been illegal under federal law.
Washington state has been asking for nearly a year if the FBI would conduct background checks on its applicants, to no avail. The bureau's refusal raises the possibility that people with troublesome criminal histories could wind up with pot licenses in the state — undermining the department's own priorities in ensuring that states keep a tight rein on the nascent industry.
It's a strange jam for the feds, who announced last summer that they wouldn't sue to prevent Washington and Colorado from regulating marijuana after 75 years of prohibition.
The Obama administration has said it wants the states to make sure pot revenue doesn't go to organized crime and that state marijuana industries don't become a cover for the trafficking of other illegal drugs. At the same time, it might be tough for the FBI to stomach conducting such background checks — essentially helping the states violate federal law.
The Justice Department declined to explain why it isn't conducting the checks in Washington when it has in Colorado. Stephen Fischer, a spokesman for the FBI's Criminal Justice Information Services Division, referred an Associated Press inquiry to DOJ headquarters, which would only issue a written statement.
"To ensure a consistent national approach, the department has been reviewing its background check policies, and we hope to have guidance for states in the near term," it said in its entirety.
In Washington, three people so far have received licenses to grow marijuana — without going through a national background check, even though the state Liquor Control Board's rules require that that they do so before a license is issued.
"The federal government has not stated why it has not yet agreed to conduct national background checks on our behalf," Washington state Liquor Control Board spokesman Brian Smith said in an email. "However, the Liquor Control Board is ready to deliver fingerprints as soon as DOJ is ready."
In the meantime, officials are relying on background checks by the Washington State Patrol to catch any in-state arrests or convictions. Applicants must have lived in Washington state for three months before applying, and many are longtime Washington residents whose criminal history would likely turn up on a State Patrol check. But others specifically moved to the state in hopes of joining the new industry.
"Both Washington state and Washington, D.C., have been unequivocal that they want organized crime out of the marijuana business," said Alison Holcomb, the Seattle lawyer who authored the legal pot law. "Requiring, and ensuring, nationwide background checks on Washington state licensees is a no-brainer."
The FBI has run nationwide background checks since 2010 on applicants who sought to be involved in medical marijuana dispensaries in Colorado, Daria Serna, a spokeswoman for that state's Department of Revenue, said in an email. The applicants provide fingerprints to Revenue's Marijuana Enforcement Division, which turns them over to the Colorado Bureau of Investigation. The agency conducts a statewide background check and supplies the prints to the FBI for a national check.
Because Colorado launched its marijuana industry by converting medical dispensaries to recreational pot shops, it's likely that no additional background checks were required for the key employees of those shops, Serna said. However, all new employees of recreational or medical shops must undergo the same background checks — and those are still being processed, Serna said.
"Doing background checks and making sure the criminal element has been locked out of the program has been enormously important in Colorado," said Michael Elliott, director of the Medical Marijuana Industry Group. "The integrity of Washington's program may be put into jeopardy because the FBI is not willing to ensure that drug cartels and criminals are being locked out, and that is absurd."
In Washington, officials use a point system to determine whether someone's criminal history is too troubling to grant them a license to grow, process or sell marijuana under the state's law, passed by voters in 2012. A felony within the past 10 years normally disqualifies an applicant, as does being under federal or state supervision for a felony conviction.
The state received more than 7,000 applications during a monthlong window that began in November. Applicants are required to supply fingerprints and disclose their criminal history, with omissions punishable by license forfeiture or denial. But without a federal background check, there's no way for state officials to verify what the applicants report.
Under rules adopted by the Liquor Control Board, the applicants' fingerprints must be submitted to the State Patrol and the FBI for checks as a condition of receiving a license. Asked whether issuing licenses without the FBI check contradicted that rule, Smith wrote: "Applicants have provided the prints necessary for running the check."
Deborah Collinsworth, manager of the Washington State Patrol's Identification and Criminal History Section, said she first asked the FBI in April 2013 about conducting national background checks on pot-business applicants.
"They haven't responded because marijuana is still federally illegal," Collinsworth said. "That's the rub."