Drug War

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.

NEXT: Time for the Libertarian Party to Call it Quits?

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  1. 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?

    Bluntly put, the supporters of marijuana reform are not likely to turn to a GOP candidate while appearing to be “soft on drugs” would not play well with many ‘centrist’ voters.

    Remember that California’s marijuana proposition lost heavily in Democrat districts.

    It is pure, cold politics on a par with Nixon’s ‘Southern strategy’.

    1. This is true, and to add to this point you can bring up Gonzalez v. Raich, wherein the liberal side of SCOTUS agreed that under the Commerce Clause Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes.

      Whilst I agree that the social cons on the right are never going to support full legalization, the current economic realities in o0ur country are marginalizing their voices within the right itself. As noted on this page today libertarians are more popular now on the right than they have been in decades. Whereas on the left, the nanny-staters are essentially running the entire democratic party and there is essentially NO DIFFERENCE AT ALL between the moderates and the far-left when it comes to federal intervention visa-vis the CC.

      I love showing Thomas’ dissent in Gonzalez v. Raich to hippies. They get all pissed off.

      1. I believe Anita Hill Man

        Nixon started the war on marijuana ’cause the corporations couldn’t compete with organic hemp.

        1. there was much more to nixon’s intentions: this is a cultural war that started long before 1970.

          fascism needs goose-shleppers not peacepipers

          and here we are.

    2. “Remember that California’s marijuana proposition lost heavily in Democrat districts.”

      That’s not really accurate. The only counties where Prop 19 actually won were the coastal counties from Sonoma to Santa Barbara together with Alpine and Mono counties, all of which are moderately to heavily Democratic.



      1. the big disappointment was that many pro growers feared legalization and voted against legalization.

  2. Obama’s policy is indistinguishable from Bush’s

    1. except for more flubbery words

  3. So iow the policy is w/e the fuck they say it is at the time and they will bust whomever they damn well please.

    1. always been that way

  4. Because what’s the point of running the DEA if you aren’t using it to fuck with mostly harmless people? I mean, sure, you could fuck with the hardened criminals and the guys with ties to organized crime, but that would entail some risk.

    1. goes deeper than that.

  5. There is large public sector complex that is fed by drug war. And then there’s the hippies. Democrats are encountering a collision of interests between those entities within its tent.

    Ditto for the fiscals vs. the fundies in the Republican mess.

    But over time, as the people who have actually grown up in the drug war replace people who invented the drug war via Father Time, like Communism it will collapse. We will all see it in our lifetimes assuming there’s nobody particularly ancient posting on these threads…lol.

    1. There is large public sector complex that is fed by drug war.


      After 4 decades of unrestrained growth and god-only-knows how many billions of dollars, the WoD has its tentacles into nearly every facet of U.S. foreign and domestic policy apparatus.

      Slaying the beast won’t come easy, but the first step to recovery is admitting you have a problem.

      1. pull the plug

  6. It’s funny how people tend to live up to their names. No chance I guess that anyone in gubmint would ever be named Freer?

    1. big inc rules with meanness of spirit.

  7. 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. …

    My guess is that … [Obama] figures that any supporters who favor a more tolerant policy have nowhere else to go.

    Ding ding ding!

    And they’ll still cling to that “lesser-evil” bullshit next time around, too.

    1. go deeper

  8. Whatever happened to the 10th Amendment? Federal drug laws are unconstitutional. Leave it to the states!

    1. the law is a cover story for thugs.

  9. Barak W. Obama knows any Republican challenger will not call him out on this particular bit of hypocracy during the election.

    Plus, California prison guards vote.

    1. another day’s work in the trashing of the people

  10. Jesus said to do unto others as we would have them to do unto us. None of us would want to see our parent or other loved one thrown in jail for using marijuana to ease the pain, depression, or nausea of a life-threatening illness. It’s time to stop putting our own families in jail. It’s very sad when our young people are arrested for marijuana, so let’s ask ourselves what is hurting the kids more: the marijuana or the arrest, the police record, the loss of financial aid, the jail time… Are they being hurt by the marijuana, or are they being hurt by the law?

    Also, check out http://www.northpoint.org/ if you’d like to see some more very positive material about Jesus at work in people’s lives.

    1. golden rule works

  11. …ties to other criminal enterprises.

    Other? They must be referring to the state licensing.

  12. Prohibitionists often express the belief that the resulting suffering and mayhem that their policy engenders is in no way connected to the basic and erroneous mechanism being used, but that they simply haven’t been granted sufficient governmental powers, i.e., the removal of even more of our basic individual rights and freedoms for these sadistic, sociopathic perverts to do their work successfully.

    It’s quite possible, that many of the early Prohibitionists did not intend to kill hundreds of thousands worldwide or put 1 in every 32 Americans under supervision of the correctional system. Nevertheless, it may now be reasonable to claim, that our Latter-Day Sadomoralist Prison-for-Profit Prohibitionists don’t care. They don’t care that, historically, the prohibition of any mind altering substance has never resulted in anything else but mayhem and chaos. They don’t care that America has the highest percentage of it’s citizens incarcerated of any country in the history of the planet. And they don’t care about spawning far worse conditions than those they claim to be alleviating. These despotic imbeciles are actually quite happy to create as much mayhem as possible, after all, it’s what fills their prisons and gets them elected. Which is why it’s no surprise, that when asked if they support torture, prohibitionist, GOP Presidential candidates rush to raise their hands. http://www.drugwarrant.com/201…..ug-policy/

    Here’s what the UK Economist Magazine thinks of us: “Never in the civilised world have so many been locked up for so little” http://www.economist.com/node/16636027

    There is no conflict between liberty and safety. We will have both or neither.
    Ramsey Clark (1927–)

    1. no sh!t

  13. It seems that it time for all MMJ Supporters to vote Independent and help remove all Repuplicans and Democrats from office asap.

  14. this drug war against us all ain’t gonna be won with marches.

    magic is required.

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