FORTUNE — As marijuana law continues to change and evolve, federal agencies are eventually going to have to adapt as well—and they know it.
Last week, FBI director James Comey—still relatively new to the directorship, having started in September—inadvertently created headlines with comments he made at the American Bar Association’s white-collar crime conference in Manhattan. At the event, Comey touched on the bureau’s hiring policy as it relates to marijuana. Congress authorized the agency to make as many as 2,000 new hires this year — many of those will likely be computer programmers. “I have to hire a great workforce to compete with those cyber criminals and some of those kids want to smoke weed on the way to the interview,” Comey lamented. He also acknowledged that the FBI is “grappling with the question right now” of altering its stringent marijuana policies, although at another event a few days later he added that he didn’t foresee any changes yet.
The current policy states that an applicant who has “used marijuana at all within the last three years” is “not eligible for employment with the FBI.”
And that’s even less strict than it once was. The three-year rule was initiated in 2007—the policy was once one of zero-tolerance, meaning any new agent that copped to having ever smoked marijuana, period, would not be hired. It is ironic, considering his reputation for unflinching morals and strict investigative findings, that it was former director Louis Freeh, now a private investigator, who first attempted to make the bureau’s marijuana policy a bit more lax.
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In talks with Fortune for a July 2013 feature profile, Freeh, who was the third-longest serving FBI director until Robert Mueller served for 12 years, told a story from when he first took the job in September 1993. “We had a policy when I came on board that if you had ever smoked a single joint of marijuana, you couldn’t be an FBI agent. I changed that,” he said. “It created a little bit of controversy at the time.” He continued:
I said to our guys, ‘Look, I’m 42, most of you guys are 50, have you ever smoked marijuana?’ They said no, and I believed them. But I said, ‘These young men and women coming in today, they’ve all smoked a couple times. They all know our policy and they know that if they say they’ve ever smoked a joint, they’re out of the process. So they all lie.’ And they said, ‘We never really thought about it that way.’ So I asked, ‘Do we want our new agents’ first interaction with the Bureau to be a lie?’ So I changed the policy.
A lot of guys said, ‘This is wrong, boss, you can’t do it.’ I said, ‘My purpose is not to encourage people to smoke marijuana, but I don’t want people lying to us on their first application when they come in.’ So, if Louis smoked five joints in the past, never sold to anyone, as long as he discloses it, it’s okay. And that’s still the case and I think it’s gotten even more liberal.
Freeh’s idea (alarming to many of his colleagues at the time) to refrain from even asking applicants whether they had smoked marijuana was too radical to be adopted; today, the question is still asked. The only change made back in Freeh’s day was that mere past and very minor usage would not be an automatic bar to employment. Today, the grace period is three years. But Freeh had the foresight to know that, realistically, the FBI could not expect its applicants to have completely refrained, in their entire lives, from recreational marijuana usage. And his point is still well-taken under today’s three-year policy: Assuming that incoming agents know the specific policy, they’re still, in a sense, encouraged to lie. A potential FBI techie who just smoked a joint the day before is incentivized to claim he hasn’t smoked in three years.
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At the ABA conference, current director Comey said that the FBI has, in many ways, “changed both our mindset and the way we do business.” If the bureau truly wants to adapt to the times, but more importantly wants to be able to recruit the best talent, it will need to make its policy even more liberal. Perhaps that will happen under Comey, but perhaps not, considering that only two days after the ABA conference, at an FBI oversight hearing, Comey clarified his comments and distanced himself from the implications behind them. “We have a three-year ban on marijuana. I did not say that I am going to change that ban,” he said.
Thus, the radical task of loosening the FBI’s marijuana policies could take many more years still, and could fall to the next FBI director.
