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That October the Justice Department issued a memo that expanded on this policy. While emphasizing that marijuana remained completely illegal under the federal Controlled Substances Act, Deputy Attorney General David Ogden told federal prosecutors that “as a general matter” 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.” Ogden mentioned two specific classes of people who should be left alone: “individuals with cancer or other serious illnesses” and their caregivers. But he also listed criteria for federal prosecution, such as “sales to minors,” “sale of other controlled substances,” and “financial and marketing activities” inconsistent with state law, that make sense only when applied to suppliers. He warned that “claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws”—meaning that federal prosecutors had to distinguish between bona fide medical marijuana dispensaries and fake ones.
“That was a pivotal moment for the national medical marijuana movement,” says Ethan Nadelmann, executive director of the Drug Policy Alliance. “It essentially provided a green light for states which had already legalized medical marijuana to say if dispensaries are operating legally under state law, the feds will not get involved. It also sent a message to state legislators in the states that were considering medical marijuana legislation, that the federal government would respect new laws.” As Trish Regan reports in her 2011 book Joint Ventures, the administration’s apparent promise to leave legitimate dispensaries alone helped set off a “green rush” of entrepreneurs eager to exploit the newly permissive environment in states such as California and Colorado.
Yet the DEA’s raids continued. If anything, the pace picked up. Americans for Safe Access counts at least 41 raids on growers or dispensaries between Obama’s inauguration and the Ogden memo, almost five a month on average. As of late May, there had been at least 106 raids since the Ogden memo, nearly six a month. In fact, medical marijuana raids have been more frequent under Obama than under Bush, when there were about 200 over eight years.
Rob Kampia, executive director of the Marijuana Policy Project, says the raids seem to be consistent with the letter, if not the spirit, of the Ogden memo, which demands “clear and unambiguous compliance” with state law. In states where the rules for supplying medical marijuana are unclear, such compliance is difficult to achieve. For example, California, where most of the raids have occurred, does not explicitly authorize the medical marijuana dispensaries that have sprung up across the state. California’s Compassionate Use Act, approved by voters in 1996, allows only patients or their “primary caregivers” to grow and possess marijuana. At first dispensary operators claimed to be their customers’ caregivers, but in 2008 the California Supreme Court ruled that a caregiver has to do more than supply marijuana. Nowadays dispensaries tend to operate as patient “collectives” or “cooperatives,” an arrangement that Attorney General Jerry Brown (now governor) approved in 2008. But some local officials disagree with this reading of state law, taking the position that all dispensaries are illegal. In any event, the Justice Department does not necessarily defer to state officials’ interpretations of state law, meaning that even a California Supreme Court ruling approving dispensaries might not count as definitive.
Four months after the Ogden memo, Jeffrey Sweetin, the special agent in charge of the DEA’s Denver office, publicly disavowed the notion that the feds needed to consider state law at all. “It’s still a violation of federal law,” Sweetin told The Denver Post in February 2010. “The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They’re violating federal law; they’re at risk of arrest and imprisonment.”
‘Exactly the Same As What Bush Said’
Alarmed by Sweetin’s remarks, Rep. Jared Polis (D-Colo.) asked Holder at a May 2010 hearing before the House Judiciary Committee whether they were “contrary to your stated policy.” Yes, Holder said, “that would be inconsistent with the policy as we have set it out…if the entity is, in fact, operating consistent with state law and…does not have any of those factors” mentioned in the Ogden memo. He said those criteria would determine “whether or not federal resources are going to be used to go after somebody who is dealing in marijuana.”
Given Holder’s assurances, it came as a surprise when U.S. attorneys began warning local and state officials that compliance with state law provides no protection against federal prosecution. In a letter dated February 1, 2011, Melinda Haag, the U.S. attorney for the Northern District of California, responded to questions from Oakland City Attorney John Russo about the city’s plans to license four large-scale marijuana growing operations. “We will enforce the CSA [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana,” Haag wrote, “even if such activities are permitted under state law.” She threatened to prosecute not only city-licensed growers but also “individuals who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers.”
During the next few months, U.S. attorneys sent similar letters to officials in at least seven other states: Arizona, Colorado, Hawaii, Montana, Rhode Island, Vermont, and Washington. All of them claimed to be consistent with the Ogden memo, which they said applied only to patients, and most claimed to be based on consultations with Holder and Deputy Attorney General James Cole (Ogden’s successor). One of the letters took the vague threats against people who “facilitate” drug offenses a step further. Referring to a bill that would have authorized state-licensed dispensaries to distribute medical marijuana, two U.S. attorneys, Jenny Durkan and Michael Ormsby, warned Washington Gov. Christine Gregoire on April 14 that “state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.” Two weeks later, citing that threat, Gregoire vetoed the legislation.
After Gregoire’s veto, the ACLU and several members of Congress asked Holder to clarify how prosecuting state-authorized medical marijuana suppliers could possibly be consistent with not prosecuting them. Rhode Island Gov. Lincoln Chafee, who halted plans for state-licensed dispensaries after receiving a threatening, hand-delivered letter from U.S. Attorney Peter Neronha on April 29, said he wanted an assurance from the Justice Department that “they are not going to raid us and shut us down.” During a June visit to Providence, The Providence Journal reported, Holder was “peppered with questions about the Justice Department’s position on dispensaries.” He promised that “we’re going to bring clarity so that people understand what this policy means and how this policy will be implemented.”
Holder’s much-anticipated explanation came in a memo quietly released on the night of June 30, right before a long holiday weekend. It brought nothing like clarity. Deputy Attorney General Cole insisted that the recent prosecution threats were “entirely consistent” with the Ogden memo, which he claimed applied only to patients and caregivers, meaning people “providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.” Alluding to Oakland’s aborted plan, he expressed special concern about “large-scale, privately operated industrial marijuana cultivation centers” with “revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.” But he gave no indication that smaller-scale, nonprofit dispensaries would be tolerated. And while Cole did not mention state employees, he warned that “those who knowingly facilitate” the cultivation or distribution of marijuana “are in violation of the Controlled Substances Act” and that those “who engage in transactions involving the proceeds” of marijuana sales could be charged with money laundering—meaning that investors, landlords, banks, and even vendors who deal with dispensaries could be subject to forfeiture and prosecution.
The Ogden memo’s guidelines for distinguishing between genuine dispensaries and criminal fronts went down the memory hole, along with all of the assurances from Obama and Holder about respecting state law. Indeed, since the Justice Department now says anyone but patients and caregivers is fair game for prosecution, Obama’s policy is indistinguishable from Bush’s. “That line,” says Americans for Safe Access spokesman Kris Hermes, “is exactly the same as what Bush said for years: ‘We’re not targeting patients.’ There is no change.” The problem is that most of the “individuals with cancer or other serious illnesses” whom the Obama administration claims to be sparing are not up to the task of growing their own marijuana. When DEA raids or Justice Department threats to landlords shut down dispensaries, Hermes notes, “patients wake up the next morning wondering where they’re going to find their medication.” The administration’s position, essentially, is that patients can have marijuana; they just can’t get it anywhere.
Why would Holder make such a big deal out of changing the policy and then abandon the new approach while denying that he was reversing himself? “I don’t think Eric Holder really is in command of the department,” says Eric Sterling. “I think the prosecutors are in command, and Holder is something of a figurehead. The statements that he has made are being contradicted by the actual policies coming out.” It looks like federal prosecutors and DEA agents recoiled at Obama’s promises of tolerance, especially as dispensaries multiplied and came to be seen as legitimate businesses. The idea of explicitly authorized, officially licensed dispensaries and grow operations spreading across the country was too much for drug warriors to take.
Perhaps Obama shared their concerns about widespread defiance of the federal ban on marijuana. Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, notes “the historical fear that Democrats have had for the last 40 years” of being “painted as soft on crime.” In any case, while polls indicate that “medical marijuana is far more popular than Obama is,” Kampia observes, “very few voters vote on the medical marijuana issue.” If Obama “has not chosen to make the effort” required to impose a new policy on a resistant bureaucracy, Sterling adds, “part of the reason is that those who care have not made him pay a political price yet.”