Drug Policy

Bummer

Barack Obama turns out to be just another drug warrior.

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It is not hard to see how critics of the war on drugs got the impression that Barack Obama was sympathetic to their cause. Throughout his public life as an author, law professor, and politician, Obama has said and done things that suggested he was not a run-of-the-mill drug warrior. In his 1995 memoir Dreams From My Father, the future president talked candidly about his own youthful drug use, in sharp contrast with the Democrat who then occupied the White House and the Republican who succeeded him. As an Illinois state senator in 2001, he criticized excessively harsh drug sentences and sponsored a bill that allowed nonviolent, low-level offenders to enter court-supervised treatment instead of going to jail, saying "we can't continue to incarcerate ourselves out of the drug crisis."

As a candidate for the U.S. Senate in 2004, Obama called the war on drugs "an utter failure" and advocated marijuana decriminalization. As a U.S. senator, he cosponsored legislation aimed at reducing the federal government's draconian crack cocaine sentences. Unlike Bill Clinton, who notoriously admitted smoking pot while claiming he "didn't inhale," Sen. Obama forthrightly told a 2006 meeting of magazine editors, "When I was a kid, I inhaled, frequently. That was the point."

Obama stood apart from hard-line prohibitionists even when he began running for president. In 2007 and 2008, he bemoaned America's high incarceration rate, warned that the racially disproportionate impact of drug prohibition undermines legal equality, advocated a "public health" approach to drugs emphasizing treatment and training instead of prison, repeatedly indicated that he would take a more tolerant position regarding medical marijuana than George W. Bush, and criticized the Bush administration for twisting science to support policy—a tendency that is nowhere more blatant than in the government's arbitrary distinctions among psychoactive substances. 

The promise of a more enlightened, less repressive national drug policy generated considerable excitement among anti-prohibition activists. Marsha Rosenbaum left her job as head of the Drug Policy Alliance's San Francisco office to raise money for Obama. The young senator also attracted significant support from three billionaire philanthropists—George Soros, Peter Lewis, and John Sperling—who are among the leading benefactors of drug policy reform. "I was delighted" at the prospect of an Obama victory, recalls Rick Doblin, president of the Multidisciplinary Association for Psychedelic Studies. "[I was] encouraged that President Obama was going to be much, much better than President Bush when it comes to drug policy."

According to Obama's drug czar, the president has indeed made a sharp break with the failed policies of the past. "We certainly ended the drug war, now almost two years ago," Gil Kerlikowske declared on Seattle's PBS station last March. Kerlikowske was referring to an interview he gave The Wall Street Journal three months after Obama picked him to head the Office of National Drug Control Policy. "Regardless of how you try to explain to people it's a 'war on drugs,'?" the former Seattle police chief told the Journal, "people see a war as a war on them. We're not at war with people in this country." According to the Journal, Kerlikowske's distaste for martial metaphors was "a signal that the Obama administration is set to follow a more moderate—and likely more controversial—stance on the nation's drug problems," dealing with drugs "as a matter of public health rather than criminal justice alone, with treatment's role growing relative to incarceration."

So far this much-ballyhooed shift has not been perceptible in Obama's drug control budgets. Even if it were, moving money from law enforcement to "treatment and prevention" would hardly amount to ending the war on drugs.

Kerlikowske's earnest insistence that you can end the war on drugs if you stop calling it that gives you a sense of the chasm between rhetoric and reality in Obama's drug policies, which by and large have been remarkably similar to his predecessor's. With the major exception of crack sentences, which were substantially reduced by a law the administration supported, Obama has not delivered what reformers hoped he would. His most conspicuous failure has been his policy on medical marijuana, which is in some ways even more aggressively intolerant than George W. Bush's, featuring more-frequent raids by the Drug Enforcement Administration (DEA), ruinous IRS audits, and threats of prosecution against not only dispensaries but anyone who deals with them. "I initially had high hopes," says Marsha Rosenbaum, "but now believe Obama has abdicated drug policy to the DEA."

It would be going too far to say that Obama has been faking it all these years, that he does not really care about the injustices perpetrated in the name of protecting Americans from the drugs they want. But he clearly does not care enough to change the course of the life-wrecking, havoc-wreaking war on drugs.

Mercy for Drug Offenders

In retrospect, there were warning signs that Obama would disappoint supporters who expected him to de-escalate the war on drugs, just as he has disappointed those who expected him to end the wars in Iraq and Afghanistan. As a U.S. senator he bragged about co-sponsoring the Combat Meth Act, which is the reason cold and allergy sufferers throughout the country are treated like potential felons whenever they try to buy decongestants containing pseudoephedrine. He staunchly defended the Edward Byrne Memorial State and Local Law Enforcement Assistance Grant Program, which has fueled the incarceration of nonviolent drug offenders and funded the regional task forces behind racially tinged law enforcement scandals in places such as Tulia, Texas. As New York Times columnist Charles Blow noted last year, this grant program, created at the end of the Reagan administration, "has become the pet project of Democrats" because it's "an easy and relatively cheap way for them to buy a tough-on-crime badge while simultaneously pleasing police unions." In 2006 Obama warned that George W. Bush's attempt to eliminate the Byrne grants (which Obama revived with a $2 billion infusion as part of his 2009 stimulus package) "gives criminals and drug dealers a break by taking cops off the streets."

Even on an issue that seemed to genuinely trouble him—the sentencing rules for crack cocaine, which treated the smoked form of the drug as if it were 100 times worse than the snorted form—Obama seemed less than fully committed. In 2007 he told a gathering of African-American newspaper columnists in Las Vegas that as president he'd appoint a panel to study crack sentences, which are imposed on defendants who are overwhelmingly black, and issue a report "that allows me to say that based on the expert evidence, this is not working and it's unfair." As Boston Globe columnist Derrick Jackson observed at the time, that was a weird thing to say, since the U.S. Sentencing Commission, the panel of experts empowered to decide what penalties are appropriate for federal crimes (within the parameters set by Congress), had repeatedly said crack sentences were irrational and unjust. Obama also wondered whether "we want to spend all our political capital on a very difficult issue that doesn't get at some of the underlying issues."

In the event, the Obama administration, to its credit, did support crack sentencing reform, although it's debatable how much political capital it spent in the process. "Attorney General [Eric] Holder really wanted to see crack reform happen," says Julie Stewart, president of Families Against Mandatory Minimums, "and I think so did Obama." The Fair Sentencing Act, which Obama signed into law in August 2010, shrank the 100-to-1 weight ratio dictated by federal law (so that five grams of crack, for example, triggered the same five-year mandatory minimum sentence as 500 grams of cocaine powder), making it 18 to 1 instead—also irrational and unjust, but considerably less so. "That was the best that they could get out of the Congress," says Eric Sterling, president of the Criminal Justice Policy Foundation, "and the administration worked for that." But by the time Obama took office, there was a bipartisan consensus, including conservative Republicans such as Sen. Orrin Hatch of Utah, Sen. Jeff Sessions of Alabama, and Rep. Dan Lungren of California, that crack penalties were unjustifiably harsh. The Fair Sentencing Act was approved by unanimous consent in the Senate and by a voice vote in the House. Only one member of Congress—House Judiciary Committee Chairman Lamar Smith (R-Texas)—spoke against it.

More generally, Obama has repeatedly expressed the view that many people in federal prisons are serving unconscionably long sentences. Yet he has not used his unilateral, absolute, and constitutionally unambiguous clemency power to shorten a single sentence, even though he has not otherwise been reticent about pushing his executive authority to the limit (and beyond). Obama went almost two years, longer than every president except George Washington and George W. Bush, before approving any clemency petitions. So far all 17 of his clemency actions have been pardons for long-ago crimes, most which did not even result in prison sentences, as opposed to commutations, which authorize the early release of current prisoners. While seven of the pardons involved drug offenders, the most severe sentence among them was five years for conspiracy to import marijuana, which 63-year-old Randy Eugene Dyer of Burien, Washington, completed more than 30 years ago. As of mid-2011, Obama had received about 4,000 petitions for commutations,  in addition to 900 that were pending when he took office. He had not approved any.

This is not for lack of glaring injustices. Last year a federal prisoner named Hamedah Hasan, who is seeking clemency with help from the American Civil Liberties Union (ACLU), wrote an open letter to Obama. "I am a mother and grandmother serving my 17th year of a 27-year federal prison sentence for a first time, nonviolent crack cocaine offense," she said. "I never used or sold drugs, but I was convicted under conspiracy laws for participating in a drug organization by running errands and wiring money. Had I been convicted of a powder cocaine offense, I would be home with my three daughters and two grandchildren by now. I have had a lot of time to think about where I went wrong, and I genuinely take full responsibility for my actions. But I hope you will see that over 16 years in prison is enough time for me to pay my debt to society."

Another crack offender, Kenneth Harvey, is serving a life sentence for possession of more than 50 grams with intent to deliver, a crime he committed in his early 20s. Although legally required to send Harvey away for life because of two prior drug convictions (neither of which resulted in prison time), the judge who sentenced him recommended that he be granted clemency after 15 years, and an appeals court agreed. Yet Harvey, now 45, has been in prison for more than two decades. Last year USA Today reported that his family "thought when Barack Obama got elected president, they'd have a shot."

Clarence Aaron, arrested when he was a student at Southern University in Baton Rouge with no criminal record, is serving three consecutive life sentences without the possibility of parole for arranging a meeting between a childhood friend and a cocaine dealer. He has been behind bars since 1993. "There's no reason he needs to serve more time," says Eric Sterling. "The system is rife with these injustices. Obama's record on clemency is shameful."

Nor does Obama seem curious about why so many federal drug prisoners are black—more than a quarter of those sentenced in fiscal year 2010, including four-fifths of crack offenders. Sterling says the Justice Department's Office of Civil Rights should investigate this sort of disparity, especially since federal crack cases often involve low-level dealers and small amounts of the drug. According to the U.S. Sentencing Commission, 35 percent of federal crack cases in fiscal year 2006 involved less than 25 grams. "There is a prima facie case that drug prosecutions are racially discriminatory, as a matter of pattern and practice," Sterling says. "It demands inquiry."

Obama the candidate agreed. "There does seem to be a racial component to some of the arrest, conviction, prosecution rates when it comes to these offenses, and that's something I think we should take seriously," he said during a 2007 appearance in New Hampshire. "That's not a black or white issue; that's an American issue. Our basic precept is equality under the law. And we've got to have a president and a Justice Department and a civil rights division that is willing to enforce the law equally.…If we're going to have drug laws, it shouldn't matter that you're dealing them in public housing vs. a suburb, out of your mom's backyard."

"If we're going to have drug laws…" Despite the implication, Kerlikowske, whose statutory mandate requires him to "take such actions as necessary to oppose any attempt to legalize" prohibited drugs, assures us that legalization "is not in the president's vocabulary, and it's not in mine." Obama, by contrast, called it "an entirely legitimate topic for debate" during a YouTube town hall in January, but only after chuckling at the idea.

'Willfully Blind' to Science

Obama's advocacy of a "public health" approach to drugs based on science uncorrupted by politics has amounted to even less in practice than his pre-presidency qualms about harsh, racially skewed sentences. Although he had long advocated lifting the 1988 ban on federal funding for needle exchange programs, which he said "could dramatically reduce rates of infection among drug users," his first budget kept the ban intact. It was Congress that later removed the restriction. "As far as we know, the White House did nothing to move Congress along," says Allan Clear, executive director of the Harm Reduction Coalition. "The general sense is that the administration is scared of syringe exchange's political taint. You can't say this administration is serious about a) addressing HIV to the best of its ability and b) basing its drug policies in science while it holds good public health at arm's length."

Yet needle exchange, which Obama at least did not actively resist, is probably the strongest aspect of his supposedly science-based drug policy. It is hard to see the scientific rationale for "zero tolerance" laws that treat a driver who smoked pot a few days ago (but who still has detectable levels of marijuana metabolites in his urine or blood) like someone who polished off a pint of bourbon right before hitting the road—a policy the Obama administration advocates in the name of "combating drugged driving." And the administration's demand for increased scrutiny of doctors' painkiller prescriptions unscientifically ignores the evidence that such crackdowns discourage medically appropriate pain treatment, leaving some patients in agony to prevent others from getting high.

The clearest indication of Obama's readiness to sacrifice scientific integrity in the service of prohibitionist orthodoxy is the administration's position on the medical benefits of marijuana. Eight days before Obama took office, the DEA rejected a petition from University of Massachusetts at Amherst plant scientist Lyle Craker, who wanted permission to grow marijuana for research purposes. The request was far from frivolous: The DEA licenses private producers of other controlled substances, such as MDMA and psilocybin, for scientific use but has always made an exception for marijuana, which can be legally grown only at a University of Mississippi farm that is operated under contract with the National Institute on Drug Abuse, an agency that is more interested in the hazards posed by cannabis than its potential benefits. Craker, backed by the Multidisciplinary Association for Psychedelic Studies (MAPS), argued that the DEA should allow competition with the government's pot farm to facilitate research by increasing the quality and variety of cannabis available to scientists. In 2007 DEA Administrative Law Judge Mary Ellen Bittner agreed. But on January 12, 2009, acting DEA Administrator Michele Leonhart overrode Bittner and denied Craker's petition.

The incoming administration did not challenge Leonhart's decision, and a year later Obama appointed her to head the DEA. Last March the ACLU filed a brief asking Leonhart to reconsider. "The government claims that marijuana offers no medical benefit to patients, and yet the government is simultaneously cutting off access to research material for scientific studies that seek to determine what medical benefit marijuana might have," it said. "The result is that the federal government remains willfully blind to the possibility of scientific results that do not match its political preconceptions." The ACLU argued that the government's obstruction of research that could demonstrate marijuana's therapeutic benefits contradicts Obama's professed commitment to sound science.

Leonhart further illustrated the marijuana exception to that commitment in July, when she officially rejected a nine-year-old petition in which Americans for Safe Access, which supports the right of patients to use cannabis for medical purposes, asked the DEA to remove the plant from Schedule I of the Controlled Substances Act, the law's most restrictive category. Schedule I is supposedly reserved for drugs that have "a high potential for abuse," "no currently accepted medical use in treatment in the United States," and no "accepted safety for use under medical supervision." Marijuana is much safer than many less restricted drugs, it has clear medical applications, and no one seriously contends it has a higher "potential for abuse" than, say, cocaine, morphine, or methamphetamine, all of which are on Schedule II. The DEA's marijuana decisions show politics continues to trump science under a president who promised the opposite.

Raids in a Time of Tolerance

Unwilling to wait for an outbreak of scientific integrity at the DEA, voters or legislators in 16 states and the District of Columbia have taken it upon themselves to legalize the medical use of marijuana. While running for president, Obama repeatedly suggested he was cool with that. Campaigning in New Hampshire during the summer of 2007, he said raiding patients who use marijuana as a medicine "makes no sense" and is "really not a good use of Justice Department resources." In a March 2008 interview with southern Oregon's Mail Tribune, he went further, saying, "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."

Critics of the war on drugs were therefore puzzled that DEA raids on medical marijuana providers continued after Obama took office in 2009, even as the White House reaffirmed that "federal resources should not be used to circumvent state laws." That February The Washington Times reported that Obama planned to suspend the raids after he "nominates someone to take charge of DEA, which is still run by Bush administration holdovers." We know how that worked out: He picked Leonhart, the Bush administration holdover who had been the agency's deputy administrator since March 2004 and its acting administrator since November 2007. Prior to that, Leonhart oversaw medical marijuana raids as the special agent in charge of the DEA's Los Angeles office. 

In theory, Leonhart still had to answer to her boss, Attorney General Holder, who claimed to be implementing Obama's promise to stop harassing state-sanctioned medical marijuana suppliers. "The policy is to go after those people who violate both federal and state law," Holder declared during a March 2009 session with reporters in Washington. "Given the limited resources that we have," he said during a visit to Albuquerque three months later, the Justice Department would focus on "large traffickers," not "organizations that are [distributing marijuana] in a way that is consistent with state law."

That October the Justice Department issued a memo that expanded on this policy. While emphasizing that marijuana remained completely illegal under the federal Controlled Substances Act, Deputy Attorney General David Ogden told federal prosecutors that "as a general matter" 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." Ogden mentioned two specific classes of people who should be left alone: "individuals with cancer or other serious illnesses" and their caregivers. But he also listed criteria for federal prosecution, such as "sales to minors," "sale of other controlled substances," and "financial and marketing activities" inconsistent with state law, that make sense only when applied to suppliers. He warned that "claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws"—meaning that federal prosecutors had to distinguish between bona fide medical marijuana dispensaries and fake ones. 

"That was a pivotal moment for the national medical marijuana movement," says Ethan Nadelmann, executive director of the Drug Policy Alliance. "It essentially provided a green light for states which had already legalized medical marijuana to say if dispensaries are operating legally under state law, the feds will not get involved. It also sent a message to state legislators in the states that were considering medical marijuana legislation, that the federal government would respect new laws." As Trish Regan reports in her 2011 book Joint Ventures, the administration's apparent promise to leave legitimate dispensaries alone helped set off a "green rush" of entrepreneurs eager to exploit the newly permissive environment in states such as California and Colorado.

Yet the DEA's raids continued. If anything, the pace picked up. Americans for Safe Access counts at least 41 raids on growers or dispensaries between Obama's inauguration and the Ogden memo, almost five a month on average. As of late May, there had been at least 106 raids since the Ogden memo, nearly six a month. In fact, medical marijuana raids have been more frequent under Obama than under Bush, when there were about 200 over eight years.

Rob Kampia, executive director of the Marijuana Policy Project, says the raids seem to be consistent with the letter, if not the spirit, of the Ogden memo, which demands "clear and unambiguous compliance" with state law. In states where the rules for supplying medical marijuana are unclear, such compliance is difficult to achieve. For example, California, where most of the raids have occurred, does not explicitly authorize the medical marijuana dispensaries that have sprung up across the state. California's Compassionate Use Act, approved by voters in 1996, allows only patients or their "primary caregivers" to grow and possess marijuana. At first dispensary operators claimed to be their customers' caregivers, but in 2008 the California Supreme Court ruled that a caregiver has to do more than supply marijuana. Nowadays dispensaries tend to operate as patient "collectives" or "cooperatives," an arrangement that Attorney General Jerry Brown (now governor) approved in 2008. But some local officials disagree with this reading of state law, taking the position that all dispensaries are illegal. In any event, the Justice Department does not necessarily defer to state officials' interpretations of state law, meaning that even a California Supreme Court ruling approving dispensaries might not count as definitive.

Four months after the Ogden memo, Jeffrey Sweetin, the special agent in charge of the DEA's Denver office, publicly disavowed the notion that the feds needed to consider state law at all. "It's still a violation of federal law," Sweetin told The Denver Post in February 2010. "The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They're violating federal law; they're at risk of arrest and imprisonment."

'Exactly the Same As What Bush Said'

Alarmed by Sweetin's remarks, Rep. Jared Polis (D-Colo.) asked Holder at a May 2010 hearing before the House Judiciary Committee whether they were "contrary to your stated policy." Yes, Holder said, "that would be inconsistent with the policy as we have set it out…if the entity is, in fact, operating consistent with state law and…does not have any of those factors" mentioned in the Ogden memo. He said those criteria would determine "whether or not federal resources are going to be used to go after somebody who is dealing in marijuana."

Given Holder's assurances, it came as a surprise when U.S. attorneys began warning local and state officials that compliance with state law provides no protection against federal prosecution. In a letter dated February 1, 2011, Melinda Haag, the U.S. attorney for the Northern District of California, responded to questions from Oakland City Attorney John Russo about the city's plans to license four large-scale marijuana growing operations. "We will enforce the CSA [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana," Haag wrote, "even if such activities are permitted under state law." She threatened to prosecute not only city-licensed growers but also "individuals who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers." 

During the next few months, U.S. attorneys sent similar letters to officials in at least seven other states: Arizona, Colorado, Hawaii, Montana, Rhode Island, Vermont, and Washington. All of them claimed to be consistent with the Ogden memo, which they said applied only to patients, and most claimed to be based on consultations with Holder and Deputy Attorney General James Cole (Ogden's successor). One of the letters took the vague threats against people who "facilitate" drug offenses a step further. Referring to a bill that would have authorized state-licensed dispensaries to distribute medical marijuana, two U.S. attorneys, Jenny Durkan and Michael Ormsby, warned Washington Gov. Christine Gregoire on April 14 that "state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA." Two weeks later, citing that threat, Gregoire vetoed the legislation.

After Gregoire's veto, the ACLU and several members of Congress asked Holder to clarify how prosecuting state-authorized medical marijuana suppliers could possibly be consistent with not prosecuting them. Rhode Island Gov. Lincoln Chafee, who halted plans for state-licensed dispensaries after receiving a threatening, hand-delivered letter from U.S. Attorney Peter Neronha on April 29, said he wanted an assurance from the Justice Department that "they are not going to raid us and shut us down." During a June visit to Providence, The Providence Journal reported, Holder was "peppered with questions about the Justice Department's position on dispensaries." He promised that "we're going to bring clarity so that people understand what this policy means and how this policy will be implemented."

Holder's much-anticipated explanation came in a memo quietly released on the night of June 30, right before a long holiday weekend. It brought nothing like clarity. Deputy Attorney General Cole insisted that the recent prosecution threats were "entirely consistent" with the Ogden memo, which he claimed applied only to patients and caregivers, meaning people "providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana." Alluding to Oakland's aborted plan, he expressed special concern about "large-scale, privately operated industrial marijuana cultivation centers" with "revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants." But he gave no indication that smaller-scale, nonprofit dispensaries would be tolerated. And while Cole did not mention state employees, he warned that "those who knowingly facilitate" the cultivation or distribution of marijuana "are in violation of the Controlled Substances Act" and that those "who engage in transactions involving the proceeds" of marijuana sales could be charged with money laundering—meaning that investors, landlords, banks, and even vendors who deal with dispensaries could be subject to forfeiture and prosecution.

The Ogden memo's guidelines for distinguishing between genuine dispensaries and criminal fronts went down the memory hole, along with all of the assurances from Obama and Holder about respecting state law. Indeed, since the Justice Department now says anyone but patients and caregivers is fair game for prosecution, Obama's policy is indistinguishable from Bush's. "That line," says Americans for Safe Access spokesman Kris Hermes, "is exactly the same as what Bush said for years: 'We're not targeting patients.' There is no change." The problem is that most of the "individuals with cancer or other serious illnesses" whom the Obama administration claims to be sparing are not up to the task of growing their own marijuana. When DEA raids or Justice Department threats to landlords shut down dispensaries, Hermes notes, "patients wake up the next morning wondering where they're going to find their medication." The administration's position, essentially, is that patients can have marijuana; they just can't get it anywhere. 

Why would Holder make such a big deal out of changing the policy and then abandon the new approach while denying that he was reversing himself? "I don't think Eric Holder really is in command of the department," says Eric Sterling. "I think the prosecutors are in command, and Holder is something of a figurehead. The statements that he has made are being contradicted by the actual policies coming out." It looks like federal prosecutors and DEA agents recoiled at Obama's promises of tolerance, especially as dispensaries multiplied and came to be seen as legitimate businesses. The idea of explicitly authorized, officially licensed dispensaries and grow operations spreading across the country was too much for drug warriors to take.

Perhaps Obama shared their concerns about widespread defiance of the federal ban on marijuana. Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, notes "the historical fear that Democrats have had for the last 40 years" of being "painted as soft on crime." In any case, while polls indicate that "medical marijuana is far more popular than Obama is," Kampia observes, "very few voters vote on the medical marijuana issue." If Obama "has not chosen to make the effort" required to impose a new policy on a resistant bureaucracy, Sterling adds, "part of the reason is that those who care have not made him pay a political price yet."

'Empty Threats'

Still, there is only so much the federal government can do to crack down on medical marijuana. The feds account for less than 1 percent of marijuana arrests, and the DEA has about 5,500 special agents nationwide, compared to more than 730,000 state and local law enforcement officers, including nearly 70,000 in California alone. "We've seen a lot of empty threats," says Steph Sherer, executive director of Americans for Safe Access. "We have seen hundreds of letters from the Department of Justice to landlords, and they have not yet prosecuted landlords. Many have received the letters, ignored them, and not lost their property. I've seen over 500 raids since I started this organization [in 2002], and each of those raids involved at least three people. We've seen about 5 percent of those people get prosecuted. The day-to-day battle is 98 percent about intimidation."

The emptiness of the federal government's threats will become steadily clearer as the number of medical marijuana states grows and dispensaries proliferate. That is why U.S. attorneys intervened in the legislative process, actively discouraging states from authorizing dispensaries by intimidating governors and legislators with the possibility of a federal crackdown. Even scarier to dedicated drug warriors is the prospect raised by Proposition 19, the marijuana legalization initiative that attracted support from 46 percent of California voters last fall. "They were within striking distance of legalizing marijuana," says Bill Piper, director of national affairs at the Drug Policy Alliance. "It's probably freaking out a lot of people in law enforcement." Similar efforts are under way in California, Colorado, and Washington, with an eye toward the 2012 elections.

Critics of such measures, like opponents of medical marijuana laws, say they are unconstitutional. That view is not only mistaken (see "Unbanned in Phoenix," page 26) but beside the point. The federal government simply does not have the resources to enforce marijuana prohibition without assistance from the states. The feds can make trouble over the short term, but ultimately they will have to accommodate themselves to that reality. The Ending Federal Marijuana Prohibition Act of 2011, introduced in June by Reps. Barney Frank (D-Mass.) and Ron Paul (R-Texas), points the way, leaving the states free to address marijuana as they see fit, with the national government's role limited to blocking importation into states that continue to ban the drug.

Meanwhile, Obama, assuming he is re-elected, may have to contend not just with dispensaries that provide cannabis to patients but with state-legal pot shops that sell the drug just for fun. How will he react? "That's the $64,000 question," says Alison Holcomb, who is leading the effort to qualify a legalization initiative for Washington's 2012 ballot. "We're hoping that the answer is something similar to the Ogden memo in 2009, saying if people are playing by the rules and Washington state wants to give this a shot, we're not going to spend federal resources going after them."

We know how Obama responds when the question of marijuana legalization comes up in public: He laughs. The highest-rated questions submitted for his "virtual town meeting" in March 2009 dealt with pot prohibition. "I don't know what this says about the online audience," Obama said with a smirk, eliciting laughter from the live audience, "but…this was a fairly popular question." 

Obama's dismissive attitude was especially galling in light of his own youthful pot smoking, which he presents in Dreams From My Father as a cautionary tale of near-disaster followed by redemption. "Junkie. Pothead," he writes. "That's where I'd been headed: the final, fatal role of the would-be black man." Judging from the reports of friends interviewed by The New York Times in 2008, Obama exaggerated his brush with addiction for dramatic effect. More important, he has never publicly acknowledged the plain truth that people who smoke pot rarely become junkies or suffer any other serious harm as a result—unless they get caught.

As Richard Nixon's National Commission on Marihuana and Drug Abuse pointed out when Obama was all of 10 years old, the biggest risk people face when they smoke pot is created by the government's attempts to stop them. In 1977, when Obama was a pot-smoking high school student in Honolulu, President Jimmy Carter advocated decriminalizing marijuana possession, telling Congress that "penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself." 

That is hardly a radical position. Polls indicate that most Americans think pot smokers should not be treated like criminals. In a 2002 CNN/Time poll, 72 percent of respondents said "people arrested for possession of small amounts of marijuana" should "pay a fine but without serving any time in jail." In a 2010 Newsweek poll, 55 percent of respondents endorsed a new California law that "will downgrade the possession of one ounce of marijuana from a misdemeanor to an infraction similar to a traffic ticket, punishable by a simple $100 fine and no arrest record." While running for the U.S. Senate in 2004, Obama told a group of students at Northwestern University he supported that sort of policy, saying "we need to rethink and decriminalize our marijuana laws." But three years later, when he was running for the Democratic presidential nomination, he changed his mind, saying he was against decriminalization.

Obama's reversal on this issue is hard to reconcile with his avowed concerns about the drug war's disproportionate impact on minorities. Research by Queens College sociologist Harry Levine shows that blacks are much more likely to be arrested for marijuana possession than whites, even though survey data indicate they are no more likely to smoke pot. In New York City, where marijuana arrests have increased dramatically since the late 1990s, blacks are five times as likely to be busted as whites. The number of marijuana arrests by the New York Police Department (NYPD) from 1997 through 2006 was 11 times the number in the previous 10 years, despite the fact that possession of up to 25 grams (about nine-tenths of an ounce) has been decriminalized in New York. Levine found that police routinely trick people into taking out their marijuana, thereby converting a citable offense (possession) into a misdemeanor (public display). The arrests are racially skewed mainly because they stem from a "stop and frisk" program that targets black neighborhoods. 

Obama attended Columbia University in the early 1980s, well before the big increase in marijuana arrests that began a decade later. There were about 858,000 pot arrests nationwide in 2009, more than twice the number in 1980, and the crackdown has been especially aggressive in New York City under Mayors Rudolph Giuliani and Michael Bloomberg (another former pot smoker). "The odds are not bad," observes Ethan Nadelmann, "that a young Barry Obama, using marijuana at Columbia, might have been arrested had the NYPD been conducting the number of marijuana arrests then that it is now."

A misdemeanor marijuana conviction could have been a life-changing event for Obama, interrupting his education, impairing his job prospects, and derailing his political career before it began. It would not have been fair, but it would have spared us the sorry spectacle of a president who champions a policy he once called "an utter failure" and who literally laughs at supporters whose objections to that doomed, disastrous crusade he once claimed to share.

Senior Editor Jacob Sullum (jsullum@reason.com) is the author of Saying Yes: In Defense of Drug Use (Tarcher Penguin).