Who Is to Blame for the DEA's Medical Marijuana Raids?

Yesterday half a dozen drug policy reform groups asked President Obama to withdraw his nomination of Michele Leonhart to head the DEA, citing her continued enthusiasm for raids on medical marijuana suppliers as the agency's acting administrator. "Under Leonhart's leadership," says the joint statement by the National Organization for the Reform of Marijuana Laws, California NORML, the Marijuana Policy Project, the Drug Policy Alliance, Law Enforcement Against Prohibition, and Students for Sensible Drug Policy, "the DEA has staged medical marijuana raids in apparent disregard of Attorney General Eric Holder's directive to respect state medical marijuana laws." As an example, the statement cites a recent raid on Mendocino County, California, grower Joy Greenfield, who "paid more than $1,000 for a permit to cultivate 99 plants in a collective garden that had been inspected and approved by the local sheriff." When told that Greenfield had approval from local law enforcement, the DEA agent in charge of the raid reportedly replied, "I don't care what the sheriff says." NORML et al. argue that "the DEA's conduct is inconsistent with an October 2009 Department of Justice memo directing officials not to arrest individuals 'whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.'"

Far be it from me to defend Leonhart, but her raids are not necessarily inconsistent with the DOJ's policy, which (as I've noted before) leaves lots of wiggle room for continued raids, seizures, arrests, and prosecutions. If there is any disagreement at all about the meaning of the relevant statutes, the DOJ can (and does) argue that growers and distributors are not "in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." In California, for example, local officials continue to argue with each other and with state officials about issues such as the definition of a patient "collective" (or "cooperative"), what kind of cultivation is permitted, and whether over-the-counter sales are legal. So while Mendocino County's sheriff may have been satisfied that Joy Greenfield was complying with state law, officials in other jurisdictions might have taken a different view. Even if every law enforcement official in California were of one mind about the requirements for marijuana cultivation, the DOJ could still choose to interpret state law differently. It is not even clear that the DOJ would defer to the California Supreme Court's interpretation of the law.

Like I said: lots of wiggle room. And you can't blame Leonhart for that. It was Holder who formulated the new policy, and it was President Obama who let him do it, despite his repeated campaign promises to leave medical marijuana patients and their suppliers alone. The definitive test of whether anything has changed will be in jurisdictions such as Maine, Rhode Island, New Jersey, and the District of Columbia, which have laws that explicitly authorize and regulate the production and distribution of medical marijuana. In Colorado, which had a law that, like California's, left crucial issues related to cultivation and sale unresolved, the state legislature recently enacted new regulations that clarify the law's requirements. If the DEA nevertheless continues to raid medical marijuana suppliers in Colorado, including dispensaries that are licensed, regulated, and taxed by the government, Obama's bad faith will be clear and unambiguous.

Addendum: In addition to the July 7 raid on Joy Greenfield, medical marijuana activists are protesting a July 6 raid on John Roberts and Stephanie Whisman in Thomas Township, Michigan. Like California, Michigan allows "primary caregivers" to help patients by growing marijuana for them. Unlike California, where the state Supreme Court has said a primary caregiver must be substantially involved in a patient's life (beyond supplying him with marijuana), Michigan defines a primary caregiver simply as someone "who has agreed to assist with a patient's medical use of marihuana." According to Americans for Safe Access, Roberts and Whisman (who are engaged) were both approved as caregivers by the state Department of Community Health. They said they were each caring for five patients, which is the maximum allowed. ASA says they were "well below the legal limit" for Michigan caregivers, which is 12 plants plus two and a half ounces of "usable marihuana" for "each registered qualifying patient." The DEA's basis for claiming they were not complying with state law is unclear.