Does the New Medical Marijuana Memo Signal Tolerance for Small Dispensaries?


The Newark Star-Ledger puts a positive spin on the Justice Department's new medical marijuana memo, saying it means "New Jersey's medical marijuana program is not likely to run afoul of federal law if its operation is kept small and controlled and doesn't allow growers to create 'industrial marijuana cultivation centers.'" Gov. Chris Christie, who since taking office has been dragging his feet on implementation of New Jersey's medical marijuana law (which was signed by his predecessor, Jon Corzine, after the election), lately has been citing the threat of federal prosecution as an excuse. Roseanne Scotti, New Jersey director of the Drug Policy Alliance, tells the Star-Ledger the memo shows there is no reason for further delay:

This is laying out explicitly who is at risk. If you are planning on growing tens of thousands of plants and making millions of dollars, you are going to be under the purview of federal law enforcement. That is not what is planned for New Jersey.

I would implore Governor Christie — beg Governor Christie — to move forward with this program with all possible speed. 

As much as I agree with Scotti that Christie should do his job, which includes executing laws passed by the state legislature, I can't share her sanguine view of the memo. The author, Deputy Attorney General James Cole, does express concern about large-scale, commercial operations:

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.

But Cole never suggests that small-scale and/or noncommercial dispensaries will be tolerated. In fact, he explicitly repudiates the notion that the Obama administration's forbearance goes beyond "individuals with cancer or other serious illnesses who use marijuana as part of  a recommended treatment regimen consistent with applicable state law" and their "caregivers," defined as "individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana." 

Cole also says nothing to alleviate the concern, cited by Christie, that state employees could be prosecuted for licensing and regulating dispensaries. Instead he reinforces that fear, 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."

Does this mean the DEA will be raiding every dispensary, including small-scale, nonprofit ones? No. So far it has not raided any dispensaries that were explicitly authorized by state law (as opposed to dispensaries that operate in a legal gray area created by unclear rules for supplying medical marijuana in states such as California). And it has always focused on bigger, more profitable operations in drug cases, leaving the rest to the states. As the DOJ keeps emphasizing, the feds have limited resources, and enforcement of marijuana prohibition is handled mainly by the states. Furthermore, it is hard to see what legal theory could be used to prosecute state employees who oversee a dispensary system unless they directly grow, handle, or distribute marijuana. In any case, busting state-licensed dispensaries or hassling state regulators would create big political headaches for the Obama administration.

If I had to guess, I'd say these things probably won't happen. But the Cole memo offers no assurances on that score. Obstructionist governors such as Christie, Arizona's Jan Brewer, and Washington's Christine Gregoire, who claim to be worried about federal prosecution, can cite the new memo to back up their position. At the same time, governors who are braver or more sympathetic to medical marijuana, such as Vermont's Peter Shumlin or Delaware's Jack Markell, can use Scotti's interpretation of the memo to argue that the risk is small. In short, the Obama administration is so vague, evasive, inconsistent, and dishonest on this subject that you might as well ignore what it says.

[Thanks to Richard Cowan for the tip.]