ACLU Asks Holder to Clarify His Medical Marijuana Policy

The American Civil Liberties Union is asking the Justice Department to clarify its position on medical marijuana in light of recent threats by U.S. attorneys to prosecute providers even when they comply with state law. In a March 9 letter to Attorney General Eric Holder, Laura Murphy, director of the ACLU's Washington Legislative Office, and Jay Rorty, director of its Criminal Law Project, note the contradiction between those threats and the forbearance promised in an October 2009 memo from David Ogden, then the deputy attorney general, and in public comments by Holder himself. They cite a statement that Holder made while visiting New Mexico, which licenses medical marijuana dispensaries, in June 2009. Here is how it was reported by The New Mexico Independent:

The nation's top cop said Friday that marijuana dispensaries participating in New Mexico's fledgling medical marijuana program shouldn't fear Drug Enforcement Agency raids, a staple of the Bush administration.

U.S. Attorney General Eric Holder, speaking in Albuquerque during a meeting focused on border issues, including drug trafficking, said his department is focused "on large traffickers," not on growers who have a state's imprimatur to dispense marijuana for medical reasons.

"For those organizations that are doing so sanctioned by state law, and doing it in a way that is consistent with state law, and given the limited resources that we have, that will not be an emphasis for this administration," Holder said.

That statement, like the March 2009 quote I cited in today's column on this subject, is pretty hard to reconcile with a threat to "to enforce the [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law," as U.S. Attorneys Jenny Durkan and Michael Ormsby put it in their April 14 letter (PDF) to Washington Gov. Christine Gregoire.

The Ogden memo (PDF) is more equivocal than Holder's public comments, full of qualifiers and weasel words, but it leaves the clear impression that the DOJ is not interested in prosecuting bona fide dispensaries that are explicitly authorized by state law. Ogden even lists factors that might lead federal prosecutors to conclude that a dispensary is not legitimate, which necessarily means that some dispensaries are:

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

• unlawful possession or unlawful use of firearms;

• violence;

• sales to minors;

• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;

• amounts of marijuana inconsistent with purported compliance with state or local law;

• illegal possession or sale of other controlled substances; or

• ties to other criminal enterprises.

Yes, Ogden says the list is not exhaustive, and he adds that prosecution may be justified despite compliance with state law "in particular circumstances where investigation or prosecution otherwise serves important federal interests." But the implication is that, by and large, providers who comply with state law need not worry about federal prosecution. Furthermore, as Murphy and Rorty note, Santa Cruz medical marijuana providers represented by the ACLU agreed to drop their lawsuit challenging the DEA's raids after DOJ lawyers "asserted that the Ogden Memo announced a significant policy shift, under which those individuals and entities that use or distribute marijuana in full compliance with state medical marijuana laws would no longer be targeted by federal law enforcement."

Yet one DOJ spokeswoman told me "there is no inconsistency" between the recent prosecution threats and the policy described by Ogden, while another told The New York Times: "This is not a change in policy. It's a reiteration of the guidance that was handed down in 2009 by the deputy attorney general." By their account, Obama's policy is indistinguishable from Bush's, which makes you wonder what all the fuss was about. The Ogden memo was pointless unless it signaled something more than a preference for not bringing penny-ante charges against cancer patients with an ounce in the drawer or a few plants in the yard—the sort of case the feds don't have the resources to pursue even if they wanted to.

Last August, our own Mike Riggs, who was writing for The Daily Caller at the time, reported that unnamed DOJ and White House officials "argued that the gist of the Holder memo was that the DEA would 'not focus its limited resources on individual patients with cancer or other serious diseases.'" My response at the time was that "if the administration's official position is now that dispensaries are fair game regardless of what state law says, Obama and Holder are even more full of shit than I thought." I have to say I am surprised by how utterly full of shit they turned out to be. Why make a big deal out of respecting state policy choices while openly undermining them? Did they think no one would notice?

I'm also not sure what the political payoff is. How many of Obama's current or potential supporters are clamoring for medical marijuana raids? According to every poll on the question that I've seen, a large majority of Americans support legal access to marijuana for patients who can benefit from it, and I suspect the numbers are especially high among people who might vote for Obama. This seems like a situation where Obama could have dialed back drug law enforcement without suffering politically. He might even have benefited by making supporters who believed his medical marijuana promises less inclined to stay home on Election Day. My guess is that DEA agents and federal prosecutors are doing what DEA agents and federal prosecutors do, and Obama simply does not care enough to stop them, since he figures that any supporters who favor a more tolerant policy have nowhere else to go.

Last October I asked why drug policy reformers assume that Democrats are better than Republicans on this issue. With a Democratic administration refusing to tolerate even modest marijuana reforms while Republican presidential contenders call for heroin legalization, the question is even more timely today.