DOJ Says Prosecuting State-Authorized Medical Marijuana Suppliers Is 'Entirely Consistent' With Not Prosecuting Them

As Mike Riggs noted on Thursday night, the Justice Department's new medical marijuana memo (PDF) confirms that President Obama and Attorney General Eric Holder are reneging on their promises to respect state law. Under the policy described by Deputy Attorney General James Cole on Wednesday, "commercial operations cultivating, selling or distributing marijuana" are fair game, even when they are explicitly authorized by state law. By contrast, in his October 2009 memo (PDF) to U.S. attorneys, Cole's predecessor, David Ogden, instructed them that 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."

Furthermore, as I pointed out last month, the Ogden memo listed factors (such as violence, sales to minors, and sales of other drugs) that "may indicate illegal drug trafficking activity of potential federal interest." These criteria make no sense when applied to individual patients or their caregivers, the only people the DOJ now says need not worry about federal prosecution; they make sense only when applied to dispensaries, and they imply that bona fide dispensaries, the ones that are not merely fronts for drug trafficking, should be left alone. Yet the Cole memo says threats to prosecute legitimate, state-licensed dispensaries are "entirely consistent" with the Ogden memo. The new memo even suggests that state employees could be prosecuted for licensing and regulating dispensaries, saying people "who knowingly facilitate" the distribution of medical marijuana "are in violation of  the Controlled Substances Act, regardless of  state law," and "are subject to federal enforcement action, including potential prosecution." 

The reversal in policy is even clearer when you consider public statements by Obama and Holder that contradict the position the administration is now taking. In a March 2008 interview with Oregon’s Mail Tribune, Obama 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."

Here is how Holder described the administration's policy during a March 2009 question-and-answer session in Washington:

The policy is to go after those people who violate both federal and state law. 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.

Three months later, Holder visited New Mexico, which licenses medical marijuana dispensaries. Here is how The New Mexico Independent described Holder's attitude toward such operations:

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.

Finally, as I've said before, the position that Obama is now taking on medical marijuana—go after producers and sellers but leave patients alone—is no different from the position his predecessor took. In fact, Obama's crackdown on medical marijuana is, if anything, more aggressive than Bush's, with more frequent raids, IRS audits that threaten to put dispensaries out of business, forfeiture threats to dispensaries' landlords, and direct interference in the legislative process by U.S. attorneys. This is certainly not what voters thought they were getting when they heard Obama repeatedly promise to change course on this issue.

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  • rather||

    The only POTUS who will keep the drug reform promise, is the one who will have a joint in his hand when giving it.

  • PIRS||

    I think Ron Paul would. He has made himself very unpopular among social conservatives and he has already proposed legislation to do so with a Democratic Congressman named Barney Frank.

  • ||

    We need to invite joe back to explain all of this. ;)

  • The Derider||

    The memo doesn't mention "dispensaries" once. It says that "large-scale, privately-operated, industrial marijuana cultivation centers" with "tens of thousands of cannabis plants" were never intended to be shielded by the Ogden memo.

    If you're somehow connecting the dots between these pot factories and dispensary raids, you need to like, include that in your article, man.

    Don't freak people out needlessly.

  • ||

    Given that dispensaries have been repeatedly raided across the country, I certainly don't think they're needlessly "freaking people out."

    It's not as though they've limited their raids to locations with 10's of thousands of plants. Do you really think this memo wont be cited in future debates about raids on state-licensed dispensaries?

  • Puppies||

    We're freaking out

  • Super Trooper||

    You *are* freaking out... man.

  • Reason Alarmists||

    Don't freak people out needlessly.

    But it's what we do!

  • The Dickrider||

    Ignore the fact that they are actually raiding dispensaries, and anyway, you morons are afraid to debate me.

  • ||

    PWND

  • Bob||

    Good job Derider, keep twisting those words until Obama doesn't look like a hypocrite. Do you even believe the B.S. you're spitting out?

  • Number 2||

    Hey Derider

    First, if the new DOJ memo really is limited to "large-scale, privately-operated, industrial marijuana cultivation centers" with "tens of thousands of cannabis plants," why didn't the DOJ make that explicit? Why did the DOJ not simply say, "We will keep our eye on large-scale, privately-operated, industrial marijuana cultivation centers to assure that their product is not diverted to illegal uses?"

    More importantly, Obama's promise, and his misrepresentation, was that he would not interfere with state medical marijuana programs. Those "large-scale, privately-operated, industrial marijuana cultivation centers" are authorized by state law, and are closely regulated by state authorities. Indeed, here in NJ the pro-medical marijuana lobby complains that the state regulations are too restrictive. Notably, the new DOJ memo makes no reference to these state regulatory programs, and draws no distinction between "large scale cultivators" who toe the state regulatory line to a tee and those who do not. In fact, state regulation of these cultivation centers is given no consideration at all.

    If Obama is going to enforce federal law against these highly-regulated "large-scale, privately-operated, industrial marijuana cultivation centers," then he is, in fact, interfering with the very state programs he promised not to interfere with. Indeed, he is declaring war on those state programs.

  • "Kinetic" cultivation centers?||

  • The Derider||

    They did make it explicit I quoted directly from the memo you moron!

  • He Debate Me||

    MEEEEEEEEEEEEEEEEEEE!!!!!

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    thank you

  • Barack Obama||

    "Finally, as I've said before, the position that Obama is now taking on medical marijuana—go after producers and sellers but leave patients alone—is no different from the position his predecessor took. In fact, Obama's crackdown on medical marijuana is, if anything, more aggressive than Bush's, with more frequent raids, IRS audits that threaten to put dispensaries out of business, forfeiture threats to dispensaries' landlords, and direct interference in the legislative process by U.S. attorneys. This is certainly not what voters thought they were getting when they heard Obama repeatedly promise to change course on this issue."

    How many time do I need to remind you Jacob? Let me be clear. As I have said consistently....The 2008 Campaign is Over!

  • ||

    It makes no sense at all that some states have medicinal use and others do not. The laws need to change at the federal level! How is it a democracy when one man, Lamar Smith, head of the House Judiciary can prevent the Bill from being heard? The nation needs to vote only for cannabis friendly candidates. Out with the old and in with the new. The time has come for the nation to stand together and demand change! VOTE! Sign petitions, be heard loud and clear. Medical Marijuana has become the new economy. The Republican rein and ruin of the nation must end.

  • tarran||

    The cognitive dissonance is strong with this one.

  • Bob Jones||

    You must be a republican, by what you said in your comment.

    Go crawl back under your rock, this world is too evolved for you.

  • ||

    Tell your Congressional Representatives -
    It is time to "Change the Schedule of Cannabis, Cannabis Laws, and Drug Czar Laws"
    Read and Sign the petition at

    http://www.change.org/petition.....-czar-laws

    After you sign the petition, email your friendlies, share on facebook, or twitter from the petition page.

    If you have a website grab the widget so your visitors can sign it without leaving your website.

    This petition uses laws passed by Congress to point out that by their laws, the laws must change.

  • Comment Tater||

    Oooh, an internet petition! That's always never a waste of time!

  • sarcasmic||

    Inactivity is activity.
    Up is down, right is left, black is white, wrong is right...
    Not busting people is busting people is not busting people.
    It is completely consistent.

  • Bob Jones||

    Yup, if you're a mental patient.

  • jtuf||

    There is some good news. Liberal Democrats are starting to wake up. In NJ, several Democrats are interested in one of our Libertarian candidates for the State Assembly.

  • WTF||

    Obama and Attorney General Eric Holder are reneging[...]

    He called them reneggers - that's racism, straight up.

  • Bob Jones||

    Boo!

    Terrible joke!

  • tarran||

    I am beginning to suspect that this is crackdown is being prompted by Obamacare; namely it is an attempt to eliminate an precedent that noncooperative states could point to when arguing that the feds ought to allow states to opt out.

    Marijuana legalization is the major nullification issue of our age, and the Feds can't afford to let nullification become a viable option.

  • Number 2 ||

    I started to suspect that a long time ago. Some commenters here suggested that I was giving Team Obama too much credit for thinking matters through that far. But I truly think you are correct.

  • Mississippi Redneck||

    As do I.

  • MNG||

    Another backing off of a campaign promise, done after a protracted, immoral period of bungling fence-sitting. This reminds me of Clinton's first two years or Carter's administration more and more.

  • MNG = Liar||

    Why are you here posting liar, when you lost bet to change your name and never changed it liar? Well liar?

  • ||

    I represent a payment processor. Our member banks are shutting off access to credit card sales to all MMJ businesses and say they are doing so under threat from the DOJ. Clinics are also having great difficulty getting checking accounts. Same threats. No business can survive without access to basic banking like checking accounts. The hypocrisy of the administration on this issue is staggering.

  • Appalachian Australian||

    Nobody's writing business insurance for dispensaries, either, which basically makes it impossible (or illegal, in some cases) to function.

  • Bob Jones||

    Also, you've got the issue of privacy. The government cannot regulate a company like say, a credit card company and direct who they can take payments from. That is a breach of privacy and honestly, is not the role of the governments.

    If the government is threatening companies into doing theis, they need to grow some balls and file suit against a government over-extending its power and influence.

  • Mike||

    This, along with Gitmo, Libya, tax cuts, etc make me wonder if we really elected a Republican in 2008... and has taken all the enthusiasm out of me for 2012... I probably won't bother voting - doesn't matter - we get the same thing no matter what.

  • Bob Jones||

    Pretty much.

    It's like picking the evil you know over the evil you don't.. whichever you pick, you're still screwed.

  • ||

    I paid $32.67 for a XBOX 360 and my mom got a 17 inch Toshiba laptop for $94.83 being delivered to our house tomorrow by fed3x. I will never again pay expensive r3tailprices at stores.I even sold a 46 inch HDTV to my boss for $650 and it only cost me $52.78 to get. Here is the website we using to get all this stuff, buzzsave. c0m...

  • Jon F.W.||

    Article is so interesting that I was speechless! Thank you!

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