Medical Marijuana Muddle

The Obama administration’s new policy may not make much difference in practice.

Jacob Sullum | October 23, 2009

During his presidential campaign, Barack Obama repeatedly promised to stop federal interference with state laws that allow the medical use of marijuana. On Monday the Justice Department seemed to deliver on that promise with a memo telling U.S. attorneys to avoid prosecuting people who use or provide medical marijuana in compliance with state law.

The new policy sounds a lot better than the Bush administration’s refusal to tolerate any deviation from federal law in this area. But because of disagreements about what compliance with state law requires, it may not make much difference in practice.

While campaigning in New Hampshire during the summer of 2007, Obama said "prosecuting and raiding medical marijuana users" is "really not a good use of Justice Department resources." In a March 2008 interview with Oregon’s Mail Tribune, he said, "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue." Two months later, when another Oregon paper, Willamette Week, asked Obama whether he would "stop the DEA’s raids on Oregon medical marijuana growers," he replied, "I would, because I think our federal agents have better things to do."

Critics of the war on drugs (and consistent advocates of federalism) were therefore disappointed that DEA raids on medical marijuana providers continued after Obama took office. There were five in January and February, all in California, even as the White House affirmed that "federal resources should not be used to circumvent state laws."

The mixed signals continued. "The policy is to go after those people who violate both federal and state law," Attorney General Eric Holder declared in March. Less than a week later, the DEA raided a dispensary in San Francisco, reportedly because of irregularities associated with the collection of state sales tax (as opposed to violations of state drug laws).

In light of Holder’s announcement, a federal judge in Los Angeles delayed the sentencing of Morro Bay dispensary operator Charles Lynch, only to be told by the Justice Department that the case against Lynch was consistent with the new policy. In August the DEA arrested a medical marijuana patient and grower in Upper Lake, California. The DEA also has continued to participate in raids initiated by local officials, hitting two Los Angeles dispensaries in August and 14 San Diego dispensaries last month.

This week's memo, which White House spokesman Robert Gibbs says merely describes what "has been administration policy since the beginning of this administration in January," helps explain these apparent inconsistencies. It tells federal prosecutors in the 13 states that recognize cannabis as a medicine they "should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

In California especially, that phrasing leaves a lot of wiggle room for federal meddling. Last fall the California Supreme Court rejected the idea that medical marijuana suppliers are legal as long as their customers designate them as "primary caregivers." Patients who are not up to growing marijuana on their own can still organize as "collectives" or "cooperatives," but local officials disagree with state officials and each other about what that means. Los Angeles County District Attorney Steve Cooley, for example, maintains that state law does not permit over-the-counter sales, which would make virtually all of the 800 or so medical marijuana dispensaries in L.A. illegal.

Cooley’s position may be welcomed by the DEA and by like-minded officials in jurisdictions such as San Diego, but it conflicts with the views of more cannabis-tolerant officials in places such as Oakland and San Francisco. It also contradicts guidelines issued last year by California Attorney General Jerry Brown, who says patient collectives may charge for marijuana, as long as they do not take in more revenue than is necessary to cover their overhead and operating expenses. Until the law is clarified by the courts or the legislature, the federal government will have plenty of opportunities to continue interfering with the distribution of medical marijuana.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

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Some Guy|10.23.09 @ 12:09PM|#

Of course it won't make much difference in practice. Local law enforcement officials were falling over themselves to be first in line to declare they were simply going to ignore Obama's pronouncements.

|10.23.09 @ 12:28PM|#

Because no one in the government actually follows the law anymore

|10.23.09 @ 12:12PM|#

This week the Justice Department told U.S. attorneys they should not prosecute medical marijuana users and providers who comply with state law.

Err, no, that's not what DOJ said. They said it shouldn't be a priority. Which means that medical marijuana prosecutions at exactly the same level as in the past would not be inconsistent with this statement.

The Wine Commonsewer (TWC)|10.23.09 @ 12:21PM|#

Off topic but here's a little gossipy news....TWC attended No Star's wedding last Saturday. The party afterward at the River Inn in Memphis was an absolute gas.

The Wine Commonsewer (TWC)|10.23.09 @ 12:22PM|#

Meant to say that the gossipy news was for old time H&R people who might wonder, on occasion, whatever happened to No Star after the tragic motorcycle accident.

|10.23.09 @ 12:30PM|#

I know I have. So if he's in good enough shape to get married, then isn't he in good enough shape to post on H&R?

Paul|10.23.09 @ 1:53PM|#

If he got married, then by definition, he's in no shape to be posting on H&R.

TWC: Was there any smoking at this wedding?

Ravac|10.23.09 @ 3:19PM|#

Good to hear No Star is doing well. Thanks for the gossip TWC.

Sandi|10.23.09 @ 12:31PM|#

I took a shit at the River Inn in Memphis once. It was an absolute gas!

|10.23.09 @ 12:35PM|#

Tell us more!

Sandi|10.23.09 @ 1:03PM|#

It was in the fitness center.

|10.23.09 @ 1:04PM|#

I'm riveted. More!

|10.23.09 @ 1:07PM|#

May I suggest a decrease in dietary fiber for your case of flatulent defecation? You constitute a fire hazard.

|10.23.09 @ 1:45PM|#

Only 25% of people have methane farts. So there's a 75% chance, you're full of shit regarding Sandi's, um, shit.

Sandi|10.23.09 @ 1:14PM|#

Put it in one of the in-room safes (about three doors down). Beyond that, there's not much more to say about it. Still need to cross Graceland off of the list.

Paul|10.23.09 @ 2:00PM|#

Shit, TWC, I didn't realize his accident occurred out here on Highway 20.

Anyway, tell him we're happy to see he's recovering well.

|10.23.09 @ 12:26PM|#

Good to hear NoStar's doing well, TWC.

As for this "new policy", we'll have to wait and see. We only had to wait a few days into this administration before they started raiding clinics, so "talk is cheap" rules here.

|10.23.09 @ 12:29PM|#

Obama should smoke a blunt, just to set an example

RACIST

jpocali|10.24.09 @ 9:36AM|#

He already has. Done a lil coke too......

Anonymous|10.23.09 @ 1:12PM|#

It's funny that this is news because people are facile enough to read what they want to hear into the empty suit's empty promises of vague random coinage, in the same way that it's funny when a dog's crunching on a rat's skull: I won, get over it.

Xeones|10.23.09 @ 1:20PM|#

As i've said before, i'll believe it when the raids stop. Which they won't.

Robert|10.23.09 @ 3:02PM|#

I don't think they will, either, but I do expect there to be many fewer in a given period of time.

BakedPenguin|10.23.09 @ 1:34PM|#

...I think our federal agents have better things to do.

Yeah, they could get productive jobs, for example.

TWC - great news.

Pingback| 10.23.09 @ 2:03PM

Twitter Trackbacks for Medical Marijuana Muddle - Reason Magazine [reason.com] on To links to this page. Here’s an excerpt:

…Links Linking to the reason.com page http://bit.ly/1xuvJk info Add Topsy to Your Blog Turn tweets into comments for your WordPress blog. Topsy Plugin for WordPress 1 tweet Tweet Medical Marijuana Muddle - Reason Magazine reason.com/archives/2009/10/23/medical-marijuana-muddle – view page – cached The Obama administration’s new policy may not make much difference in practice. — From the…

Invisible Finger|10.23.09 @ 5:12PM|#

Enjoy.

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Pingback| 10.23.09 @ 7:12PM

The Volokh Conspiracy » Blog Archive » How Much of a Difference will the Administrati links to this page. Here’s an excerpt:

…medical marijuana even in cases where the marijuana in question had never been sold in any market or left the state where it was grown (I criticized Raich in this article ). However, as Jacob Sullum points out, the policy may not make much difference in practice, especially in California (the state with by far the biggest concentration of medical marijuana cases). The key sticking point…

Alice Bowie|10.23.09 @ 9:22PM|#

Obama's statement on Monday doesn't do SHIT!

It's not what he promised. and definitely not what I wanted...The legalization of Marijuana already. Or, at lease, the de-criminalization to the point that there is no criminal record...and that jobs can't test for it.

Spencer|10.23.09 @ 11:54PM|#

Obama likes talk because he can say whatever he likes and then not do anything. Remember he won a noble peace prize for not doing anything

|10.24.09 @ 2:22PM|#

Of course the DEA will not adjust their practice at all. Cannabis busts are their "cash cow", allowing the asset forfeiture laws to pad their paychecks, claiming the need for more budget allocation, and marching down the avenue to rid the nation of what they consider "undesirables". Ja, Schutz Staffel, nein Juden, Ja? Einer, zwei, drei, vier...DEA es Schutz Staffel, Ja!

Wicks Cherrycoke|10.26.09 @ 11:28AM|#

I realize this is late, but I urge anyone who dreams that this directive is a breakthrough to look up the actual document itself at http://www.justice.gov/opa/doc.....juana.pdf. In addition to the weasel term, "priority," it urges restraint only in cases of "clear and unambiguous" compliance with State law. It then proceeds to give examples of factors that constitute "not clear and unambiguous compliance with state law," including items of questionable relevance such as "unlawful possession or use of firearms" and possession of "excessive amounts of cash." It concludes by reminding prosecutors that compliance with or violation of state law is utterly irrelevant to proving a federal law violation.

This is "sanity on marijuana?"

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Michele Leonhart new DEA head? What is Obama thinking?? « Weed all about it… links to this page. Here’s an excerpt:

…drug warrior who was all for circumventing state medical marijuana laws when she was only the acting DEA administrator will have a change of heart now that her position is more secure. And as I’ve noted before, the Justice Department’s new policy of leaving medical marijuana growers and distributors alone if they “are in clear and unambiguous compliance with existing state laws” leaves a…

Pingback| 2.6.10 @ 4:32PM

The Perfect Choice to Oversee an ‘Utter Failure’ - www.hostzi.com - deep web news ra links to this page. Here’s an excerpt:

…without regard to whether they were following state law. She therefore embodies the Bush administration’s policy of trying to override state medical marijuana laws, a policy that President Obama claimsto have renounced. Leonhart also was the official who rejected an administrative law judge’s recommendation that the DEA license a private source of marijuana for medical research. These two positions…

Abercrombie and Fitch|2.6.10 @ 9:19PM|#

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We Won’t Raid Medical Marijuana Producers . . . so Long as They Aren’t Successful at links to this page. Here’s an excerpt:

…Colorado U.S. Attorney David M. Gaouette decides if he’ll be charged. Last October, I expressed some skepticism about Obama’s announcement to end the federal medical marijuana raids. My Reason colleague Jacob Sullum did too. Digg it | reddit | del.icio.us | Fark This entry was posted on Monday, February 15th, 2010 at 9:14 am by Radley Balko and is filed under General Drug…

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…what they stated they would not do in October. Will the Obama administration provide us with scorecards, please? It’s getting difficult to keep up with the expiration dates. Radley Balko and Jacob Sullum expressed a great deal of skepticism four months ago about the Obama administration’s sudden move towards federalism. It looks as though that skepticism was prescient. While the federal…

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…and arrest people.” Bartkowicz is being held over the Presidents Day weekend while the office of Colorado U.S. Attorney David M. Gaouette decides if he’ll be charged. Last October, bothI and JacobSullum expressed skepticism about Obama’s announcement to end the federal medical marijuana raids. Read More… [Source: Hit & Run ] Chat with Oracle Broadcasting and 12160.org Your not alone.…

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…Yesterday Radley Balko notedthat on Friday the Drug Enforcement Administration busted Chris Bartkowicz, a medical marijuana grower in Highlands Ranch, Colorado, despite the Justice Department’s announcementthat it would stop prosecuting such individuals if they are complying with state law. Did Bartkowicz’s operation comply with state law? The short answer is “probably,” at least as the…

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The Volokh Conspiracy » Blog Archive » As Predicted, New Justice Department Policy Di links to this page. Here’s an excerpt:

…or witness in any administrative, civil, or criminal matter .... Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.” Despite campaign rhetoric to the contrary, the Obama Administration has yet to make any genuine progress against the infringements on civil liberties and constitutional federalism created by the War on Drugs. If the president really…

|3.18.10 @ 4:31PM|#

It then proceeds to give examples of factors that constitute "not clear and unambiguous compliance with state law," including items of questionable relevance such as "unlawful possession or use of firearms" and possession of "excessive amounts of cash." It concludes by reminding prosecutors that compliance with or violation of state law is utterly irrelevant to proving a federal law violation.

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abercrombie milano|5.27.10 @ 5:59AM|#

My only point is that if you take the Bible straight, as I'm sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won't get the full deal by just doing regular skill english reading for those books. In other words, there's more to the books of the Bible than most will ever grasp.

Medical Health Blog|6.3.10 @ 4:02AM|#

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Medical Health Blog|6.3.10 @ 4:06AM|#

Bible will have so much of content wich is helpful
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|6.26.10 @ 2:38PM|#

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