Policy

Obama Administration Overrides 2009 Ogden Memo, Declares Open Season on Pot Shops in States Where Medical Marijuana Is Legal

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The Department of Justice sent out a memo Wednesday instructing the head of the Drug Enforcement Administration and leading officials in the U.S. Attorneys Office to treat medical marijuana shops as top priorities for prosecutors and drug investigators.

"Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law," the memo reads. "Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA."

The memo, authored by Deputy Attorney General James M. Cole, "clarifies" a memo released in 2009 that declared medical marijuana sales in states that have legalized it to be a low priority for law enforcement and prosecutors. The so-called "Ogden memo" first appeared to drug law reformers as evidence that President Obama was dialing back the war on drugs. The DEA and U.S. Attorneys office continued to raid and prosecute state-legal grow operations and marijuana shops after the memo was first circulated, leading reformers to conclude that Obama was lying when he said that his administration would not be doing those things. 

The memo written by Cole and addressed to DEA Administrator Michele M. Leonhart and several members of the U.S. Attorney's office is a severe amendment to the Ogden memo. "The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels," the memo reads. 

"The Ogden Memorandum provides guidance to you in deploying your resources to enforce the CSA as part of the exercise of the broad discretion you are given to address federal criminal matters within your districts." The memo also says that the meaning of the Ogden memo has not changed since its writing. 

Then memo continues: 

[T]he Ogden Memo reiterated to you that prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority, but advised that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers. The term "caregiver" as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.

The Department's view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.

The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.

The above reveals that the DOJ is attempting to rewrite history, as Jacob Sullum pointed out last month:

In October 2009, David Ogden, then the deputy attorney general, sent a memo that seemed to fulfill this promise. "As a general matter," he told U.S. attorneys, 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."

Yet the DEA's medical marijuana raids not only have continued but are more frequent under Obama than they were under George W. Bush. Americans for Safe Access (ASA), which argues that patients who can benefit from marijuana should be able to obtain it legally, counts well over 100 raids in the two years and four months since Obama's inauguration, compared to about 200 during Bush's eight years in office. "The Obama administration really is being more aggressive than the administration of his predecessor," says ASA spokesman Kris Hermes.

At first, it seemed the DEA was targeting growers and sellers who arguably were not "in clear and unambiguous compliance" with state law, since the rules for supplying medical marijuana were fuzzy in jurisdictions such as California, Colorado and Montana. But the U.S. attorney letters conclusively show that, contrary to the impression left by the Ogden memo, complying with state law provides no protection against federal prosecution.

Justice Department spokeswoman Tracy Schmaler insists there is "no inconsistency" between the recent threats and the Ogden memo, which she says "talks about not investigating sick individuals who might be in compliance with state law." Actually, the memo refers not to "sick individuals" but to "individuals" generally, and it cites as examples not only patients but "caregivers" who supply them with marijuana.

In any case, the Justice Department's distinction between patients and suppliers cannot be reconciled with Attorney General Eric Holder's description of the new policy. "The policy is to go after those people who violate both federal and state law," he said in March 2009. "Our focus will be on people, organizations that are growing, cultivating substantial amounts of marijuana and doing so in a way that's inconsistent with federal and state law."

The Ogden memo did not make medical marijuana legal, but it clearly advised federal law enforcement agencies to go after pot shops that showed signs of being tied to organized crime. From the Ogden memo, released in 2009: 

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

When I asked the White House in 2010 if continuing to raid medical marijuana dispensaries–which it had been doing less often than under Bush, but more often than never–a senior staffer told me, "Yes – that enforcement is focused on those incidences where both federal and state law are being violated – and is therefore focused largely on drug traffickers. It has not spent its limited resources on ind. patients with cancer and other serious disease." 

Thanks to Tom Angell from Law Enforcement Against Prohibition for sending the memo.