Feds Threaten to Prosecute Medical Marijuana Providers 'Whose Actions Are in Clear and Unambiguous Compliance' With State Law


Last week Washington Gov. Christine Gregoire vetoed a bill that would have clarified the rules for growing and supplying medical marijuana in her state, citing threats of federal prosecution. Gregoire was responding to an April 14 letter in which the U.S. attorneys for Washington, Jenny Durkan and Michael Ormsby, warned that dispensary operators and the state regulators who oversee them both could be prosecuted, since "we maintain the authority to enforce [federal law] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law." USA Today reports that U.S. attorneys in California, Colorado, Montana, and Rhode Island have made similar threats. New Jersey Gov. Chris Christie, no fan of medical marijuana to begin with, has cited these letters as a reason to delay implemention of dispensary regulations in his state. 

These prosecution threats blatantly contradict the Justice Department's official medical marijuana policy, which Attorney General Eric Holder says is "to go after those people who violate both federal and state law." In their letter (PDF), Durkan and Ormsby try to reconcile their stance with Holder's by distinguishing between "seriously ill individuals who use marijuana as part of a medically recommended treatment regime," who will be left alone, and "business enterprises that unlawfully market and sell marijuana" (i.e., dispensaries), which will be subject to prosecution. Yet the October 2009 memo (PDF)  that explained the DOJ's new policy of restraint drew no distinction between patients and providers, advising U.S. attorneys to avoid cases involving "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." It explicitly mentioned "caregivers" who supply patients with marijuana as one example of such individuals.

As I noted at the time and have pointed out since, the requirement of "clear and unambiguous compliance" with state law allows DEA raids and federal prosecutions to continue in states, such as California and Montana, where the rules for growing and supplying medical marijuana are unclear. But as I said last July, the definitive test of whether the new policy means anything in practice, and whether it can be said to fulfill Obama's campaign promise to stop interfering with state decisions regarding medical marijuana, will be in jurisdictions with "laws that explicitly authorize and regulate the production and distribution of medical marijuana." If the DEA raids government-licensed dispensaries that are "in clear and unambiguous compliance" with state law, I wrote, "Obama's bad faith will be clear and unambiguous." It is getting clearer every day.

A recent Reason-Rupe poll found that 69 percent of Americans think the federal government should respect state policy choices regarding the medical use of marijuana.