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.